E 398 
.C54 
Copy 1 




LAtn^e^iijAn^ /V^*^ '^' 



7 



REMARKS 



p m 1^, 



UPON THE 



DISPUTED POINTS OP BOUNDARY 



UNDER THE 



FIFTH ARTICLE OF THE TREATY OF GHENT, 



PRINCIPALLY COMPILED FROM 



THE STATEMENTS LAID BY 



THE GOVERNMENT OF GREAT BRITAIN 



BEFORE 



THE KING OF THE NETHERLANDS, 



AS ARBITER, 



SAINT JOHN, NEW-BBUNSvncK: 

PRINTED BY U, a, CAMERON, AT THE OBSERVER OEFICE. 

1838. 



O r-4- 



?i^r(^ 



FIFTH ARTICLE OF THE TREATY OF GHENT, 
Deccmljci- 24tli, ISl*. 



Whereas neither that point of the Higiilands lying due north from the 
source of the River St. Croix, designated in the former Treaty of Peace 
between the Two Powers as the north-ivest angle of Nova Scotia, nor 
the north-westernmost head of Connecticut River have yet been ascer- 
tained; and whereas that part of the Boundary Line between the do- 
minions of the Tsvo Powers, which extends from the source of the Ri- 
ver St. Croix, directly north to the above-mentioned north-west angle 
of Nova Scotia, thence along the said Highlands which divide those 
rivers, that empty themselves into the River of St. Lawrence, from 
those which fall into the Atlantic Ocean to the north- westernmost head 
of Connecticut River, thence down along the middle of that river to the 
45th degree ol north latitude, thence by a line due west on said latitude 
\intil it strikes the river Iroquois or Cataraguy, has not yet been sur- 
veyed ; it is agreed thai for these several purposes, two Commissioners 
shall be appointed, sworn and authorized, to act exactly in the manner 
directed with respect to those mentioned in the next preceding Article, 
unless otherwise specified in the present Article, The said Commis- 
sioners shall meet at St. Andrews, in the Province of New Brunswick, 
and shall have power to adjourn to such other place or places as they 
shall think fit. The said Commissioners shall have power to ascertain 
and determine the jioints above-mentioned, in conformity ivith the Pro- 
visions of the said Treaty of Peace of 1783 ; and shall cause the Boun- 
dary aforesaid, from the source of the River St. Croix, to the River 
Iroquois or Cataraguy to be surveyed and marked according to the 
said provisions : the said Commissioners shall make a map of the said 
Boundary, and annex to it a declaration under their hands and seals, 
certifying it to be the true map of the said Boundary, and particularizing 
the latitude and longitude of the north-west angle of Nova Scotia, of 
the north-westernmost head of Connecticut River, and of such other 
points of the said Boundary ns they may deem proper. And both par- 
lies agree to consider such Map and Declaration as finally and conclu- 
sively fixing the said Boundary. And in the event of the said two 
Commissioners dilfcring, or both, or either of them, refusing, declining, 
or wilfully omitting to act, such reports, declarations, or statements, 
shall be made by them, or either ol'them, and such reference to a friendly 
Sovereign or State shall be made in all lespecls, as in the latter part 
of the Fourth Article is contained, and in as full a manner as if the same 
w^s herein repeated. 



NoBTH Eastern Boisdarv, Pngo 3 

North- WrsTERNMosT Head 01 Connecticut RivEB, ... 74 

BOCNOARY ALONG Tilt PARALLEL OF 45« NoRTU LaTITLDE, - 7G 

Award or the ARciTra Appendix, Pngo i. 

Trial or John Baker, vii. 

Trial or Barnabas Hannawell and others xii. 



ERRATA. 
Page 23, line 4, for most, read "muit." 

" 39, last lioe, for courses, read " sourcei." 

" 59, lint 29, for their twofold, read " tlat Iwofuld." 



"Nortfj IBuuUvn Mounnavi^. 



The words of the Treaty of 1783, in. its first and secoud 
Articles, ai-e as follows : — 

'•' Article I. His Britannic Majesty acknowledges the said 
United States, viz. New Hampshire, Massachusetts Bay, 
Rhode Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, Vir- 
ginia, North Carolina, South Carolina, and Georgia, to be 
Free, Sovereign, and Independent States; that He treats 
with them as such ; and for Himself, His Heirs and Succes- 
sors, relinquishes all Claims to the Government, Propriety 
and Territorial Rights of the same, and every part thereof. 

" Article II. And that all disputes which might arise in 
future on the subject of the Boundaries of the said United 
States iliay be prevented, it is hereby agreed and declared 
that the follovvring are and shall be their Boundaries ; viz. : 
from the north-west angle of Nova Scotia, viz., that angle 
which is formed by a line drawn due north from the source 
of Sai?if Croix River to the Highlands, along the said 
Highlands ivhich divide those rivers that empty themselves 
into the River Saint Lawrence, from those which fall into 
the Atlantic Ocean, to the north-westernmost head of Con- 
necticut River ; thence down along the middle of that river 
to the forty-fifth degree of north latitude ; from thence by a 
line due west on said latitude until it strikes the River Iro- 
quois or Cataraquy ; thence along the middle of said river 
into Lake Ontario ; through the middle of said lake, until it 
strikes the communication by water between that lake and 
Lake Erie ; thence along the middle of said communication 
into Lake Erie ; through the middle of said lake, until it ar- 
rives at the water-communication between that lake and 
Lake Huron ; thence along the middle of said water-com- 
munication into the Lake Huron ] thence througli the mid- 
dle of said lake to the water-co( nmunication between that 
lake and Lake Superior ; thenq through Lake Superior, 
northward of the Isles Royal and Phelipeaux, to the Long 
Lake ; thence through tlie middle of said Long Lake, and 
the water-communication between it and the Lake of liie 
Woods, to the said Lake of the Woods ; thence through the 



naid lake to tlio most north-\vesiern point thereof, and from 
thence on a due west course to the River Mississippi ; thence 
by a hne to be drawn along the middle of the said River 
I^iississippi, until it shall intersect the northernmost part of 
the thirty-first degree of north latitude : — South, by a line 
10 be drawn duo cast from the determination of the line last 
mentioned, m the latiiiide of thirty-one decrees north of the 
equator, to the middle of the River Apalachicola or Cata- 
houche ; thence along the middle thereof to its junction with 
the Flint River: thence straight to the head of Saint ^Mary's 
River ; and thence down along the middle of <S7. Man/s 
River to the Atlantic Ocean: — FiAST, by n Une to be 
drawn along the middle of the River St. Croix, from its 
mouth in the Bay of Fundy to its source ; and from its 
source directly north to the aforesaid Highland?*, which di- 
vide the rivers that fall into the Atlantic Ocean from those 
which fail into the Uivcr St. Laicrcncc ; comprehending all 
Islands within twenty Icai^nes of any part of the shores of 
the United States, and lying between lines to be drawn due 
east from the jK>int5 where the aforesaid Boundaries between 
Nova Scotia on the one jiart, and IJnst Florida on the other, 
shall respectively touch the Bay or Fundy and the Atlan- 
tic Ocean ; excepting .such Islands as now are, or hei-ctoforo 
have been, within the limit* of the said Province of Nova 
Scotia." 

Althouch tiie British and American fiovcrnments dificr as 
to where the point of departure for the Northern Boundary of 
The United Slates, designated by the name of the north- 
west Angle of Nova Scotia, is to be placed according to tho 
intention of the Treaty ; and althoush the conflicting claims 
involve a differcnrc of 105 miles distance on the due north 
Line, and of 10,705 square miles in total extent, both Par- 
ties agree in stating, that in order to determine the true si- 
tuation of the above-mentioned point of defjarture, the hi^rh- 
lands intended by the Treaty must first be determined. "^I'he 
correctness of this opinion admits of no doul)t. The Tre.ity 
stipulates that the eastern Boundary line shall be drawn di- 
rectly north to the highlands ; and that the northern Boun- 
dary shall extend along the highlands from the jK)int where 
the said north Line strikes them. Notwithstanding a cer- 
tain awkwardness in the construction, it may, on the whole, 
be presumed that the Treaty contemplates the same high- 
lands in the several clauses of the Article wherein that term 
is used. The real cpicstion, therefore, is this : Along what 
highlands, tovrhed by a Itnedrairn due north from the source 



<ff ilie St. Croix, is the Northern Boundary of The United 
States to be carried, loestvaard, to the north-westernmost head 
of the Connecticut River ? 

However simple the form in which this question is stated, 
there would be no great candour in representing it as one of 
easy sokition. The circumstances under which the treaty 
of 17S3 was concluded, were such as to make it extremely 
probable that serious difficulties would arise in the com-se of 
its execution. The first object of the negociation, ccmmon 
to both parties, was peace ; the second was the establish- 
ment of peace on solid and durable foundations. It was es- 
sential to the latter purpose that the Boundaries of The 
United States should be explicitly and conclusively defined 
by mutual consent. By waiting for all the topographical 
information necessary to give a detailed description of the 
Boundaries, the negotiators would have exposed the whole 
work of pacification to the most imminent risk. This can- 
not fail of striking every one who bears in mind the immense 
extent of inland boundary claimed by The United States, 
as well on the side of the 13ritish Provinces as on that of the 
western wilderness. A considerable portion of the frontier 
territory was, at that time, altogether unknown, or, at best, 
very imperfectly explored. The framers of the Treaty were 
therefore reduced to the alternative either of confining them- 
selves to a general definition of the Boundary according to 
such notions as they already possessed of the p>rincipal fea- 
tures of the country, or of abandoning every uncertain and 
disputed part of it to subsequent negotiation. That the for- 
mer course of proceeding was ultimately preferred, notwith- 
standing the inconveniences attached to it, on distinct and 
deliberate consideration, is evident from the recorded fact of 
the British Plenipotentiary having rejected, after reference 
to his Government, the proposal of the American Negotiators 
to apply the principle of an indefinite postponement to a part 
of the frontier involving that which is immediately in cpes- 
tion. The nearest practicable approach to settlement, pre- 
ceded by a statement, as well in the Treaty itself as in its 
preamble, of the wise and conciliatory foresight which in- 
fluenced the Contracting Parties, was naturally deemed more 
likely to promote a permanent good understanding between 
them, than a mere agreement, tacit or expressed, to complete 
the definition of the Boundaries at some later eventual period. 
The Treaty of Ghent appears to have been concluded un- 
der a like anxiety to prevent or settle disputes arising out of 
the uncertain state of the Boundaries, Hew indeed could ic 



be otherwise wiih Ihe experience which had been acquired 
after the Peace of 1783. and convincing evidence of which 
exists in the -Ith and oth Articles of the Commercial Treaty 
concluded in 1794? In the former of tlicsc Treaties it was 
presumed that tlie River Mississipjn would be intersected by 
a due west liue drawn from the north-westernmost point of 
the Lake of the Woods. The 4th Article of the latter is 
applied to the correction of that error. In t!ie same manner 
it was found necessary to apyioint a Commission for the pur- 
pose of determining which river was meant to bo the St. 
Croix designated in the Treaty of 1793, as forming part of 
the Eastern Boundary of The United States. Other instan- 
ces of the perplexity and ■ nee which evidently ]-»revail- 
ed to a very late period r« .-^ • ■ ii.ig many ] arts of the frontier 
territory, mi^ht be easily adduced. IJiit let it suflico for tho 
present to observe, tliat if little was ascertained concerning 
the screes and directions of Rivers, which generally afford 
t' •? curliest means of comnnuiication. and the most conve- 
nient places for settlomcnt in newly occupied countries, how 
very much less was probably known of a hilly or mountain- 
ous tract, situated at a distance from the sea, overgrown with 
forests, and intermingled with extensive morasses. The 5th 
Article of the Treaty of Ghent, after all the discussions be- 
tween the negotiators of it which have of late been so in- 
dustriotisly quoted in the American Congress, expressly de- 
clares that "neither that point of the Highlands lying due 
" north from the source of the River St. Croix dosieiiated 
" in the former Treaty of Peace between the two Powers as 
" the north-west an^lc of Nova Scotia, nor the north-wcst- 
" ernmost head of (he Connecticut River, have yet been as- 
" certaincd.''' The article goes on to provide for the ap- 
pointment of Commissioners who are empowered among 
other things *• to ascertain and determine the points above 
" mentioned in conformity with the provisions of the said 
" Treaty of Peace of 1783." 

A moment's reflection on what precedes cannot fail of 
shewing how extremely dilficult, or rather how utterly im- 
practicable it must have been for the Negotiators of 1783 to 
describe the Boundary throughout it.'; whole extent in such 
terms as to leave no room for hesitation or dispute in fixing 
its actual delimitation. It would surely be more reasonable 
to wonder at the degree of success which has attended the 
labours of the Commissioners employed in that operation, 
than to be unprepared for some occasional inconsistency be- 



iween the expressions of the Treaty and the localities of the 
country when ascertained by regular surveys. 

In no inquiry of this description can the ends of justice 
be attained, except by looking steadily to the intentions of 
the Treaty, or, in other words, of those who framed it. Few 
Treaties would alford occasions for dispute, if the terms, in 
which they are expressed, could always be applied with 
clearness and certainty to the cases for which they were 
meant to provide. It is precisely the obscurity, or contradic- 
tion of the terms, or a want of evident conformity between 
them and the thing to be done, Vv^hich is the frequent cause 
of difficulty in carrying Treaties into execution. This de- 
fect attaches more or less to all human agreements. In those 
which subsist betAveen Governments and Nations, separated 
from each other by distance, and still more so by the differ- 
ence of their views, circumstances and interests, there must 
necessarily be greater room for its operation. From what 
special causes the Treaty of 17S3 was peculiarly liable to 
this evil, in so far as respects the Boundaries of The United 
States, it would be superfluous to repeat. The cogent evi- 
dence, however, which comes in aid of the letter of the 
Treaty to indicate the real intention of the Parties, would 
leave as little reason to regret any want of preciseness that 
might be found in its terms, as any such inaccuracy would 
itself be calculated to create surprise under the known cir- 
cumstances of the case. 

But if it can be shev/nthat the terms of the Treaty, right- 
ly understood, are not in contradiction, either with the prin- 
cipal features of the country, as now ascertained, or w4th the 
presumed intentions of the Parties, and, on the contrary, 
that they correspond, to all declared intents and purposes, 
with the Boundary Line indicated by the present British 
claim, such a concurrence, which could hardly have been 
reckoned upon with entire confidence when the Treaty was 
signed, must surely be entitled to its full weight. The 
conclusion to which it leads would be the more inevitable, 
when taken in connection with the circumstance that the 
wording of the Treaty, in one decisive particular,* was 
clearly and cautiously selected, with a view to that very li- 
mitation for which Great Britain contends in support of her 
claim. Evidence of liiis description leaves little or nothing 
to be desired. But, after all, the main object is to ascertain 
the real intention of the Parties to the Treaty, and provided 

♦This refers to the term "Atlantic Ocean," used in the second Article of 
the Treaty of 178y, and further explained in the course of ihe ensuing remark*. 



lliat object be aiiained according to the best available means 
of information, it is of small comparative importance whe- 
ther the spirit or the letter of the Treaty be found most con- 
ducive to its accomplishment. One thing is crrtain : the 
iettcr is only of value in proportion as it lends to the disco- 
very or maintenance of the truth. Now, truth is by no 
means of a narrow or partial character. It cannot, indeed, 
bo entirely severed from the letter, but it is dilVu.'^ed through 
the context, and lives in the spirit of a Treaty. Vattol ex- 
presses himself as follows, in the ITth chapter of his second 
Book : '' If It happens that the Contracting Parties have not 
" made known their will with sufficient cletirness, and with 
** all the necessary precision, it is certainly more conformable 
" to equity, to seek for that will in the sense most favoura- 
" ble to equality and the common advantage, tliaii to sup- 
*' pose it in the contrary sense." Thus it is, that the autho- 
rity of the most approved writers on the Law of Nations is 
found in strict accord with the maxims of common sense 
and good faith. 

The United States have, indeed, spared no effort to make 
out that the terms of the Treaty, taken in their obvious and 
literal sense, establi.sh incontestably the line of Boundary 
claimed by them to the exclusion of every other. The 
truth of this assertion is positively denied on the part of 
Great Britain. The words of the Treaty Articlo, taken by 
themselves, lead to no such conclusion ; taken with reference 
to the Treaty at large, they lead to a very different conclu- 
sion ; and taken with reference not only to the Treaty, but 
■also to the intentions of those who framed it, as further ma- 
nifested by various corroborating circumstances, they estab- 
lish clearly and satisfactorily the justice of the British 
claim. 

Looking, first, to the Treaty itself, nothing can be clearer 
than the great governing principle upon which its provisions 
were founded. This principle is distinctly laid down in the 
preamble of the Definitive Treaty concluded in 1783, and 
also in that of the Preliminary Articles signed in the prece- 
<ling year. " It is a^rcciJ,"' says the latter, " to form the 
" Articles of the proposed Treaty on such principUs of lib c- 
" ral cquitrj and reciproritj/, as that partial advantages 
" (those seeds of discord) being excluded, such a beneficial 
" and satisfactory intercourse between the two Countries 
" may be established, as to promise and secure to both per^ 
" pet ua I peace and harmony.''' In the Definitive Treaty it 
IS declared to be the intention of the Parties to establish 



their relations with each other *' itjyon the ground of recip- 
" rocal advantages and mutual convenience,''^ in such man- 
ner as to promote and secure the same great object of per- 
petual harmony between both. In addition to these general 
but forcible expressions, the Article immediately relating to 
Boundaries is prefaced by a specific statement of the motive 
which induced the Parties to declare them by mutual agree- 
ment, namely, " that all disputes lohich might arise in fu- 
'^ ture on the subject of the Boimdaries of the said United 
" States may be prevented.^'' No words could express more 
distinctly than these passages the desire of both Parties, not 
only to preclude the possibility of future dispute by defining 
the Boundaries as positively as it was then practicable to de- 
fine them, but also to settle them in such a manner as would 
best consult the convenience of each Party, and thereby con- 
ciliate the acknowledged rights and true interests of both. 

It further results from an examination of the Treaty, that 
although the agreement to define the Boundaries originated 
in the above-mentioned motives, the act of definition itself 
was peremptory, and purposely rendered independent of every 
principle or motive, but the declared consent of the Parties. 
The first Article contains a recognition of the Independence 
of the Thirteen United States and of their territory. The 
second Article declares, by mutual agreement, what the ex- 
tent of territory so recognized was meant to be. The re- 
cognition and the declaration are two separate things. The 
Treaty being silent, it cannot be presumed that they were 
intended to be strictly co-extensive, in the teeth of that un- 
certainty which was known to hang over the conflicting 
claims of the two Countries with respect to a considerable 
portion of the common frontier. 

This peremptory definition of the Boundaries, it is also to 
be rememberedjWas applied exclusively to The United States. 
There is no question of the Boundary of the British Colonies, 
except as a consequence of the settlement of The United 
States' Boundary. Wherever the States border on those 
Colonies, the same Boundary Line which limits the one 
must necessarily limit the other also. The two Countries 
did not stand in corresponding situations towards each other 
when the Treaty of 1783 was negotiated. Whatever ad- 
vantage might accrue to the United States from having their 
sovereignty recognized by Great Britain, the validity of the 
British title to the remaining British Possessions could derive 
no additional strength from being acknowledged by them. 



10 

On the whole, then, it may be aflirmed with confidence^ 
that the intention of the Treaty was. 

1*^ To define exclusively the limits of the United States ; 
2^ To define them peremptorily ; 

3° To define them with the view of preventing future 
disputes ; and, 

A° To define them in such a manner as to promote the 
** reciprocal advantage and mutual convenience" of both 
Countries. 

The next field of inquiry is the negotiation which prece- 
ded the conclusion of the Treaty. But in making any in- 
quiry into the imperfect records of that event, care must be 
taken to guard eipially against jartiality, and needless dis- 
cussion. The last of these dangers may be avoided by ap- 
pealing only to such documents, relative to the Treaty, as 
proceeded either from the negotiators themselves, or from 
the authorities, under whose instructions they acted. The 
former is little to be a)>prchendcd on the side of Great Bri- 
tain, if the documents referred to, instead of beini:; British, 
or even common to both parties, are entirely and exclusively 
American. Sufficient materials, even on this limited plan, 
axe in existence. 

In '• The Secret Journals of the Arts and Prorerdings of 
Congress." published in the United States in 1821, under 
the authority of Congress, a full account is given of the pro- 
ceedings of the American Congress relative to the negotia- 
tions which preceded and introduced the preliminary articles 
of 1782, subsequently embodied in the definitive Treaty 
of 1783. 

Among these documents arc the original instructions given 
by Congress to their Commissioner ajtpointed to conduct the 
negotiations, which instructions include the first draft of the 
article respecting Boundaries, as adojited in Congress after 
long and anxious deliberation. 

The following are extracts from those instructions, vol. 
ii, p, 224 : 

•' August 14, 1779. — Congress proceeded in the consider- 
" ation of the instmctions to the Minister to ])e npf)ointed 
•' for negotiating a Peace, and unanimously a2reed to the 
" following draft of instructions to the Commissioner to be 
" appointed to negotiate a Treaty of Peace with Great 
" Britain. 

" Sir, — You will herewith receive a commission, giving 
" you full power to negotiate a Treaty of Peace with Great 



11 

" Britain, in doing which you v/ill conform to the follow- 
" ing information and instructions : 

" 1. The United States are sincerely desirous of peace, 
" and wish by every means, convsistent with their dignity 
"and safety, to spare the further effusion of blood. They 
" have, therefore, by your commission and these instructions, 
'• laboured to remove the obstacles to that event, before the 
" enemy have evidenced their disposition for it. Bur as the 
" great object of the present defensive war on the part of the 
" Allies is to establish the Independence of the United States, 
" and as any Treaty whereby this end cannot be obtained 
" must be only ostensible and illusory, you are, therefore, to 
" make it a preliminary article to any negotiation, that Great 
'' Britain shall agree to treat with the United Slates as sove- 
'' reign, free, and independent. 

" 2. You shall take especial care also, that the indepen- 
" dence of the said States be effectually assured and con- 
'* firmed b^^ the Treaty or Treaties of Peace, according to 
" the form and effect of tlie Treaty of Alliance with His 
'"■ Most Christian Majesty. And you shall not agree to such 
" Treaty or Treaties, unless the same be thereby so assured 
'• and confirmed. 

'' 3. The Boundaries of these States are as follows, viz. : 
" these States are bounded North, by a line to be drawn /ro??r 
" the 7iorth-west angle of Nora Scotia along the highlands 
" which divide those rivers which empty themselves into the 
'' River St. Lawrence, from those which fall into the Atlan- 
^' tic Ocean, to the north-westernmost head of Connecticut 
*' River : thence down along the middle of that river to the 
" forty-fifth degree of north latitude ; thence due west in the 
" latitude forty-five degrees north from the equator to the 
" north- westernmost side of the River St. Lawrence or Ca- 
'' daraqui ; thence straight to the south end of Nepissing ; 
*' and thence straight to the source of the River Mississippi : 
" West, by a line to be drawn along the middle of the River 
" Mississippi from its source to where the said line shall in- 
" tersect the thirty-first degree of north latitude : South, by 
" a line to be drawn due east from the termination of the 
" line last mentioned in the latitude of thirty-one degrees 
" north from the equator to the middle of the River Apala- 
" ciiicob, or Catahouchi ; thence along the middle thereof 
" to its iunction with the Flint Rix'er ; thence straight to 
" the head oi St. Mary's River : and thence down along the 
'-middle of St. Mary's River to the Atlantic Ocean: anci 
" East, by a line to be draun along" the middle of St. John^s 



12 

*' liivcr from its soiirrr to its mouth in the Bay of Fnndj/, 
■■ coiiiprehcndiiig all Islainls within twenty I'-ayucs ol' any 
'• part of the shores of the United States, and lying between 
•• lines to be drawn due eaist from the points where the ufore- 
*• said nouiidarios between Ndva Scotia on the one j»art. and 
" Kiust I'lorida on the other |)art. shall rcsptrtivcly touch the 
**' Bay of Fund y and Atlantic Ocean. Yon are, therefore, 
"strongly to contend that the wliolc of the said coiuitries 
** and islands lying within the lJt)undaries aJoresaid. and 
"every citadel, fort. post. ]>lace. liarbonr and road to thon> 
**l)eIonging. be abscilutely evacuated by the land imd sea 
" forces of His Britainiic Majesty, and yielded to the Powers 
** of the States to which they rt^pectively belong, in such 
" situation as they may be at the termination of the war. 
** But, notwithstanding the clear right of these States, and 
'* the importance of the object, yet they are so much in- 
** fluenced by the dictates of religion and hmnanity, and so 
•* desirous of complying with the ('arnest request of their Al- 
•' lies, that if the line to be drawn from the mouth of the 
" Lake Nepissing to the head of the ]Mississipj)i cannot be ob- 
" tained without continuing the war for that jmrpose, you 
" are hereby emjxiwered to agree to some other line between 
"that point and the Uiver Missi.«5sip})i ; jirovidcd the same 
" shall in no part thereof be to the southward of latitude 
" forty-t>ve dciirees nor^h. And in like inaiiiKT. if the East- 
*^ cm Boundary above dcsa'ibcd cannot be obtained, you arc 
" hereby empowered to ascrcc that the same shall be aftcr- 
" wards adjusted, by Commissioners to be duly appointed 
^^for that purpose, according t^ such line as shall be by them 
'• settled and ai^reed on, as the JJoundary bctu^ccn that jiart 
^^ of the. State of Massachusttls Bay, formerly railed the 
" Province of Maine, and the Colony of Nova Scotia, agree- 
" ably to their respective ri<rhts. And you may also consent, 
" thut the enemy shall destroy such fortifications as they 
" may have erected." 

Subsequently, in thfi year 17S2, after the negotiations had 
been actually ojx^ned. the American Congress took these 
matters into consideration, and concurred in a re[)ort made 
to them by a Connniltee of their House, apiMiin^ed to inves- 
tigate the subject of IJoiuidaries with reference to the above- 
eited instructions. 

Uf that report, which may be seen at length in the above- 
inenlioned '• Secret Journals of the Old Congress," Vol. iii. 
^- 169. the following are extracts. 



13 

The Committee reported " tliat they had collected facts 
^' and observations, which they recommend to be referred 
" to the Secretary for Foreign Aflairs, to be by him digested, 
■' completed and transmitted to the Ministers Plenipotentiary 
■"for negotiating a Peace, for their information and use. * * 

" With respect to the Boundaries of the States, * * * 

^'Massachusetts claims under the charter granted by Wil- 

■*^ Ham and Mary on the I7th October, 1601. 

******* 

" It is incumbent on us to show that the territorial rights 
of the thirteen United States, v.iiile in the character of 
British Colonies, were the same with those defined in the 
instructions given to Mr. J. Adanis on the — day of Au- 
gust, 1779, ****** 
So fair are our preten-sions rendered by the united opera- 
tion of the grants, charters. Royal commissions, and 
Indian cessions, * * * that w<? 

shall content ourselves with reviewing the objections which 
will most probably be urged against them, without enter- 
ing into the direct proofs of our titles. 
■" First objection. Even upon the supposition that the 
charter of Massachusetts is valid so as to cover the vacant 
lands, still it does not follow that St. John's River is part 
of its Eastern Boundary ; for that river is contended to be 
in Nova Scotia under the expression of the New Charter 
of Massachusetts in 1691, which conveys the country 
between the Province of Maine and Nova Scotia. The 
south-west boundary of Nova Scotia, therefore, will regu- 
late this claim. But it is well known that in the alterca- 
tion between France and Great Britain upon tFiis very 
subject in 1751, Acadia or Nova Scotia was asserted by 
the latter to be bounded by Pentagoet or Penobscot River. 
" Ansv:er. '• It is to be observed, that when the boun- 
daries of the United States were declared to be an ultima- 
tum, it was not thought advisable to continue the war 
mereltj to obtain territory as far as St John^s River ; but 
that the dividing line of Massachnsetfs and Nova Scotia 
was to be consigned to future settlement. It must be con- 
fessed, also, that this country, which is said in the New 
Charier to border on Nova Scotia and the Province of 
Maine, on opposite sides, and which goes under the name 
of Saga hock, cannot be proved to extend to the River St. 
John as clearly as that of St. Croix. But there is some 
• reason notiinthstandinc: to believe, that Nova, Scotia wa9 
'never supposed by the British King in any grnnt to /j7> 



14 

" subjects to rome to the south of St. John's liiifr. alfhoiiph 
'* he might have exacffd from Fmncc a rehiKiuishment ol" 
" the lands to the Kiver IVnobscot. or even Kennebec, as a 
•' jwirl of Mova Scotia.*' 

Tlie Committee, after furtlierrensoninirupon thes»^;iosrrf 
Boundaries hiid down in various old charters afFecting that 
country, conchide this jKirt of their report by sayinsr : 

'* AN o are olili-jed to ur^e probMbihties. h/miisr in thr carltf 
''possession of a ruit<^k urircrluimcd rountry. nrmrnnj of 
''lines cannot he murh attcnderl to. But we wish that tho 
'• north eastern Bcunihiry of Massaclnisetts may be left to 
" future (liscussi(^n, whm other evidences may l^e obtained. 
• which the war has n-moved from u.<5.'' 

in a work entitled the " Privntr Concspondcncc of Dr. 
Franllin,^^ we find (he iollowing authentic account of wliat 
occurred during this imjxirtant period of the neffociations in 
1782. 

1. Extract of a letter from Dr. I'rankli?! to the Honblc. 
Robert Livingston, dated I'a.ssy, 14th (Vtober, 1782. 

'• We have now made several preliminary jiropositions. 
" whicli the Kngli.sh ^linistcr. IMr. Oswald, has approved 
"and .*;ent to liis Court. He tliiidcs tlicy will be ajiproved 
" there, but I han sotnc doubts. In a few days, however, 
" the answer expected will detmnine. By the first of these 
''articles the Kincr of Great Britain renounces for himself 
'' and siiccessors all claim and pretension to dominion or ter- 
" ritory within the thirteen United States : and thr Bovn- 
" darics arc described OS in our instructions, e.rrtpt that thn 
" line betireen Nova Scotia and Nnc England is to be sei- 
" tied by C'ornniissioners after the Peace.''' 

2. Extract of a letter from Dr. l-^rnnklin to the Hon. R. 
" Livingston, dated Pa.csy, December />, 1782. 

" You desire to be very particularly acqtiainted with every 
" step which tends to a negociation. I am therefore en- 
'* couraged to send you the first part of the journnl. which 
"accidents and a long severe illness interrupted. btU which 
'' from notes I have by me may be continued, if I thought 
" proper. In its present state it is hardly fit for (he insj rr- 
" tion of Congress, certainly not for public view ; I confide 
'' it therefore to your prudence. 

'* Tlip arrival of Mr. .fay. Mr. Adams, and ^Ir. Laurens, 
'• relieved ine from much anxiety, which must have con- 
" tinued, if I had been left to finish the Treaty alone ; and 
" It has given mn the more satisfaction, as I am sure th«> 
" business lias profited by (heir assi.stance. 



15 

-' Much of the summer had been taken up ni objecting 
'■' against the Powers given by Great Britain ; and in remov- 
" ing those objections, the using any expressions that might 
" imply an acknowledgement of our independence, seemed 
" at first industriously to be avowed. {Q.. avoided?) But 
" our refusing otherwise to treat, at length induced them 
" to get over that difficulty : and then we cayne to the point 
"■ of making p7'opositions. Those made by Mr. Jay and 
'' me, before the cirrival of the other gentlemen, you will 
" find in the enclosed paper, No. 1, which was sent by the 
'•' British Plenipotentiaries to London for the King's consi- 
" deration. After some weeks an Under Secretary, Mr. 
" Strachey, arrived, with whom we had much contestation 
" about the Boundaries, and other articles which he propo- 
" sed ; vve settled some, which he carried to London, and 
" returned with the propositions, some adopted, others omit- 
" ted or altered, and new ones added, which you will see, 
'' Paper No. 2.* We spent many days in disputing, and 
'* at length agreed on and signed the preliminaries, which 
'' you Y/ill receive by this conveyance." 

Paper No. 1, above referred to. 

" Articles agreed upon by and between Richard Oswald, 
" Esq., the Commissioner of His Britannic Majesty for 
" treating of Peace v.dtJi the Commissioners of the United 
" States of America, on behalf of His said Majesty, on the 
" one part, and Benjamin Franklin, and John Jay, two of 
" the Commissioners of the said States for treating of Peace 
'< with the Commissioners of His said Majesty, on their be- 
" half, on the other part. 

" Whereas reciprocal advantages and mutual convenience 
" are found by experience to form the only permanent foun- 
"■ dation of peace and friendship between States, it is agreed 
" to frame the articles of the proposed Treaty on such prin- 
" ciplcs of liberal equity and reciprocity, as that partial ad- 
^'vantages (those seeds of discord) being excluded, such a 
" beneficial and satisfactory intercourse between the two 
'' countries may be established, as to promise and secure to 
" both the blessings of perpetual peace and harmony. 

1st. *• His Britannic Majesty acknowledges the said United 
'' States, viz., Nev/ Hampshire, Massachusetts Bay, Rhode 
" Island and Providence Plantations, Connecticut, New 
'• York, New Jersey, Pennsylvania, Delaware, Maryland, 
•'• Virginia, North Carolina, South Carolina, and Georgia, to be 

* Thii Pa-er No. 2 is not cnntiiined in ilie work from which these exlracl» 
RiT tftkcn. 



1« 

" free, sovereign, and indc)>endcm Slater : thatht' treats witti 
" them as such ; and for Himself, his Heirs and Successors, 
" reUn(juishes all claims to the govornmonl, propriety and 
" territorial rights of the same, and every |>art thereof; and 
" that all disputes which might arise in future on the subject 
"of the Ik)undarie8 of the -sjiid United States, may be prc- 
" vented, it is horfhy agreed and declared that the follow- 
•*' ing are, andsh.dl remain to ho. their Roundarios. viz : 

" The said States are bounded JS'vrtfi by a iinr to he drawn 
"from the I\'orth-irest an^le of Nova Sootiaaloni( the hii,'-h- 
" lands whi'h divide those rivers that vtiipftj thrnisclves int« 
" the River St. Lnxrnnre from those nhirh fall into ths 
" Atlantic, to the Aorth'-irfstrrritncst hrad nf Connertinit 
" River ; thence down along the middle of that river to the 
" 'lath degree of north latitude, and thence due west in the 
" latitude forty-five degrees north from tho Ecpiator, to the 
" north-westernmost .Md<> of the River St. I,awrence, or Ca- 
" taraguy ; thence straight to the liake Ne})issiihg, and thence 
" straight to the source of the River Missi.'v«;ii)pi : nest, by a 
" line to be drawn along the middle of the River Mississippi, 
''to where the said line shall intersect the 31st degree of 
" north latitude ; south, by a line to be drawn diiceaf:t froin 
''the termination of the lino la.st mentioned, in the latitude 
" of 31 degrees north of tlv Iviuator to tlie middle of the Ri- 
" ver Apalachicola, or Catahouchi : thoncp along the middle 
'* thereof to its junction witli tlie Flint River: thence straight 
" to the head of St. Mary's River; thence doirv nlnns: the 
" middle of St. Man/s River to the Atlnvtir Ocean : and 
*' east, by a line to he drawn alonic the inid</le of the St. 
*' Johns River from its source to its mouth in the Bay of 
^' Fundy ; comprehending all islands within twenty leagues 
''of any part of the shores of the United St.-ites. and lying 
*' between lines to be drawn due eai^ from the points where 
■" the aforesaid Boundaries, between Nova Scotia on the one 
" part, and East Florida on the other, shall respectively touch 
•" the Bay of Fund y AND the Athmtic Ocmn.- 

'' Part*;, Sth October, 1782. 
" A true copy of which lias been agreed on between tho 
■"American Commissioners and me, to be submitted to His 
■" Majesty's consideration. (Signed) ''R.Oswald." 

" Alteration to be made in the Treaty, respecting the Boun- 
" daries o( Nova Scotia, viz : 

" East, the true linn between which and the United States 
" shall he settled hy Commissioners, as soon as conveniently 
" may be after the war.'' 



ir 

5. Extract of a letter from Dr. Franklin to the Hon. R. 
Livingston. Secretary for Foreign Aflairs, dated Passy, 14tb 
December,' 1782 : 

" Sir, — We have the honour to congratulate Congress oil 
" the signature of the Preliminaries of a Peace between the 
"Court of Great Britain and the United States of America,. 
" to be inserted in a J3efinitive Treaty so soon as the terms 
" between the Crowns of France and Great Britain 3ha.ll be 
*' agreed on. A copy of the articles is here enclosed." — ■■ 
(N. B. The second article is there described such as it now 
stands in the Treaty of 1783.) 

" Remarks on Article II. relative to the Boundaries : 

" The Court of Great Britain insisted on retaining all the 
" territories comprehended within the Province of Quebec^ 
*' by the Act of Parliament respecting it. They contended 
" that Nova Scotia should extend to the River Kennebec.^^ 

The evidence of Mr. Adams and Mr. Jay (co-plenipotenti-- 
aries with Dr. Franklin in negotiating the Treaty of 1782-3) 
Felative to the same matters, subsequently taken on oath be- 
fore the Commissioners appointed under the Treaty of 1794^ 
for ascertaining the true St. Croix, corroborates in every point 
the information given by Dr. Franklin. 

'•' The British Commissioners," says Mr. Adams, " firsfc 
*• claimed to Piscataqua River, then to Kennebec, then tcJ 
"' Penobscot, and at length to St. Croix, as marked on Mit- 
" chell's map." 

That map, Mr. Adams had declared, Atras the only map or' 
plan which was used by the Commissioners at their public 
conferences. 

Mr. Adams proceeds to say, " one of the American Com- 
" missioners at first proposed the River St. John as marked 
" on Mitchell's map ; but his colleagues observing, that as 
'• tbx St. Croix was the River mentioned in the charter of 
" Massachusetts Bay, they could not justify insisting on th€ 
" St. John as an ultimatmn, he agreed with them to adhere 
" to the charter of Massachusetts Bay.^^ 

'' The ultimate agreement," repeats Mr. Adams, in reply to 
another interrogatory, " was to adhere to the Charter of Mas- 
" sachusetts Bay, and to the St. Croix River mentioned in it, 
" which was supposed to be delineated in Mitchell's map." 

Mr. Jay declared on oath, in the same manner, that " in the 
" course of the nogociations, difficulties arose respecting the 
" eastern extent of the United States. That Mitchell's map 
" was before them, and was frequently consulted for geogra- 
" phical information." 



18 

Further, Mr. Jay declared, "thai he doubted there having 
" then been very clear conceptions rdatice tu the just and pri.- 
•' cisc eastern extent of Massachusetts, lor he had reaiion to 
" believe, that res|x?ctahje opinions in America at that time 
" ( 1782) considered the River St. John as the proper eastern 
" limit ol' the United States,'' 

The foregoing documents will now form the subject of 
some remarks in the order in which they have been quoted. 

The instructions framed in 1779 by the Congress of The 
United States, prejwraiory to a negotiation for f)oacc, contain 
the same Article res[)ecting Boundaries which, with some 
important modifications, was afterwards transferred to the 
Treaty. The changes introduced into the Article relate to 
two |)ortion.s of the Boundary : 1°. That jxirt of the North- 
ern Boundary which extends from where the parallel of 45*^ 
North Latitude intersects the River St. Lawrence to the Mis- 
8issip|)i : 2*^. The Eastern and adjoining' j art of the North- 
ern Boundary of the United States.* 

The first of these amendments had the elfoct of substitn- 
ting for the Line proj)osed by The United States from Lake 
Ne|)issing to the .Mi^.si.s.<i|)pi anotlicr line ] asking very consi- 
derably to the South, through the great chain of North Ame- 
rican Lakes. In virtue of the second, the River St. Croix is 
made to constitute the Kastcrn boundnry of the United States, 
instead of the River St. John, whicli had been j^rojwsed by 
the American Congress ; and certain highlands are substitu- 
ted for that jiart of the River St. John, which would have 
formed a bonndary on the north ; a definition of what was to 
be understood by "the North West Angle of Nova Scotia," 
having been at the same time inserted in the same Article of 
the Treaty. It is further to be observed, that such latitude 
as had been given by the instmction itself to the American 
Commissioners was subjected to certain specific restrictions, 
and that in both the cases above-mentioned, these restrictions, 
as well as the original pro]x)sals, were set aside in the course 
of the negotiation. With respect to the latter, the American 
Negotiators, in case of not being able to obtain the River St. 
John for an Eastern bonndary, were " empowered to agree 
" that (he same should be afterwards adjusted by Commis- 

• Although, in the insiructiori addressed by the American Conprees to their 
Commissioner', the propo<(al of the llivcr St. John i* cxprefRtd only with re- 
ference to the ir.<.f boundary, it is, nevertheles-i, niHnifest ihat, owinp to llie 
bend of that river to ilie westward, it would, in point of fact, constitute a con- 
•iJerab'.e part of the iiorthein boundary alio. 



19 

-• oners to he duly appointed for that purposed It is needless 
to repeat the words of the Treaty ah-eady cited to prove that 
neither of these two proposals, the original or the substitu- 
ted, Avas accepted; but on the contrary, that a more westerly 
river than the St. John, and one which had consequently 
the effect of contracting the territory to be defined on that 
side, was ultimately agreed upon, and so consigned to the 
Treaty, 

The mere exposition of these facts is sufficient to esta- 
blish that whatever may have been the principle upon 
which the United States thought fit to ground their 
pretensions, the proposals emanating from it were evi- 
dently not satisfactory to the British Government, and that 
the principle itself was so little capable of bearing them 
out, that it became indispensable to admit a new arrange- 
ment of the Boundaries, which could not possibly repose on 
the same principle. 

It is observable, indeed, that the American Instructions 
declare no principle of Settlement Avith respect to the Boun- 
daries. To say that " the Boundaries of these States are as 
^^ follows ^^ is the assertion of a fact, not the declaration of a 
principle. Supposing the proposition contained in these 
words of the instruction to be true, it may have been true 
on the principle of possession, or on that of right derived 
from any one of several distinct sources, or from all. It may 
have been a right of The United States, taken severally, or 
of the same States constituting one political Body. The 
only part of the instruction relating to Boundaries, which 
even hints at a principle, is that incidental clause wherein 
a substitution for the proposed eastern boundary is placed 
eventually at the discretion of the American Minister. 
Speaking of the appointment of Commissioners as condition- 
ally suggested, the clause in question runs thus : " Accord- 
" ingto such Line as shall be by them settled and agreed on 
" as the Boundary hetioeen that part of the State of Massa- 
" chusctts Bay, formerly called the Province of Maine ^ and 
" the Colony of Nova Scotia, agreeably to their respective 
" rights.'''' But this proposal having been rejected by the 
British Government, and a new arrangement substituted au- 
thoritatively in the Treaty for the original proposal which 
preceded it, there is no ground whatever for concluding that 
the Treaty stipulation, as it now stands, was, in any degree, 
connected witli that principle. The presumption is, indeed, 
entirely the other way. In giving a discretionary power to 
their Minister on the two points before mentioned. The 



20 

Lmleii Slates express thenis<'lvea as follows; '' Notivith- 
" startJimj' the cleaa right of these States,'" (viz. to the set 
of boundaries first proposed i " a/iJ the importance of the ob- 
*^ject, yet they are so much influenced by the dictates of re- 
" Licio.v AND ULMANiTT, <!)'c. that i/oti are hereby empowered 
''to a^reo to some othrr Line, <l\v." That is to say, the 
"clear rieht'' of The United ^lat-t^s was eventually to be 
■given up from t;enend motives ^f '• humanity*' to the ob- 
jections, as such, of their adversary ; not, observe, to any 
convincing proofs which that adversary might furnish of his 
Buperior title to parts of the frontier territory, but to his de- 
termination rather to carry on the war, than to sign a ixjaco 
in strict conformity with the pretensions of The United 
States. Such forbearance is worthy of the highest praise on 
grounds of '* religion and humanity ;*' but it is any tiling ra- 
ther than evidence tliat the boundaries, as ullimattly agreed 
upon, were regulated by a fixed acknowledged princirle of 
right. 

An attentive perusal of the foregoing extracts from tho 
Report of the Committee of the American Congress can 
hardly fail to s-'^" > the following conclusions: — 1*-\ Tiiat 
although The i 1 States may nbt have thought it pru- 

dent to ground their territorial claiins upon any distinct prin- 
ciple in the instruction prepared for their Plenipotentiary, 
they well knew that their only plausible title m'.ts that 
derived under their charters a:-; British Colonies, modiliedby 
subsequent Acts of the Government. 2^. That, although 
they deemed the justice of their claims too manifest to re- 
quire the exhibition of any direct proofs, they, nevertheless, 
anticipated ojiposition from Great Britain to their proposal 
respecting the north-eastern Boundary, and iwrhajis even 
the assertion of a counter claim, as far west as the River 
Penobscot or the Konnebec. 3*^. That with reference to 
this north-ca.stern Boundary, they felt the necessity ofur^-irig- 
probabilities, " because in the early pmsrssion of a roiigk 
'* nnrecltiimcd country, accuracy of Linc9 nivnot be vnich 
'• attended io.^' 4'-\ That is was their 'to have the 

" north-eastern Boundary of Massachusetts left to future 
'' discussion^ 

There is no necessity for going into any length of rea«'on- 
in"' on these conclusions. It is sulficicnt to consign them 
here for eventual reference in future stages of these remarks. 
To one point, however, it mny be well to direct immediate 
attention, namely, tlie " icisti'' expressed by the American 
Congress that tlie north-eastern Boundary of Massachusetts 



21 

should be reserved for future discussion. Some of the circum- 
stances under which that v/ish was entertained may be easily- 
collected from the documents already referred to. 

It appears, in the first place, that The United States were 
then actually in possession of "Grants, Charters, Royal 
Commissions and Indian Cessions," sufficient in their opinion 
to prove the '' clearness" of their " right." It also appears that 
the chajinel of the River St. John, such as rt w^as afterwards 
proposed in negotiation as their north-eastern Boundary, 
was comprehended in that right ; that tlie independent sove- 
reignty of The United States, so closely connected with their 
territorial right, remained to be established ; and that its es- 
tablishment in virtue of the formal recognition of Great Bri- 
tain was the main object, to Avhich they were looking with 
eagerness as the crown and consummation of their struggle. 

The approximation of these circumstances is by no means 
unimportant. It was natural to inquire why tliere should 
have been any ipislt on the part of The United States, to 
leave their north-eastern Boundary unsettled in the Treaty 
of Peace, which was to settle all other parts of the Boun- 
dary, Vv^hen they were already possessed of such convincing 
proofs of the "clearness" of their "right?" The answer is 
now obvious. The American Congress, besides wishing ear- 
nestly for Peace, did not overlook the advantage with wliich 
they might hope to maintain their pretension hi its utmost 
extent after the recognition of their independence should 
have been placed by an act of solemn ratification beyond 
the reach of Great Britain. It might be difficult to j)rove 
that the same reason was among the motives which induced 
the British Government to insist upon defining the whole 
Boundary Line in one and the same Treaty ; but it is at 
least evident, iti point of fact, that Great Britain could 
not have acted more strictly in accordance with that sup- 
position tiian she did; and that the agreement ultimately 
consigned to the Treaty, bore ever j^ appearance of proving 
an effectual safeguaj'd against future dispute or encroach- 
ment. 

The correspondence of the American Plenipotentiaries, 
and the evidence which they subsequently gave on oath be- 
fore the Commissioners appointed under the Treaty of 17'D4 
to ascertain the true river St. Croix, also present and con- 
firm facts which it is material to bear in mind. The letters 
and evidence in question furnish the data which follow. 

1°. The proposals made to the British Plenipotentiary, 
in th^ Negotiations of 1783, were- in substance precisely the- 



22 

same as those which appear in the instructions drawn up by 
the American Congress in 1779, and to which the approved 
Report of their Committee, in 17S2, refers. 

2*^. These propo&ils, on their l)eing sent to London by Mr. 
Oswald, were rejected by the British Government. 

3°. The American Negotiators, after some dilTerence of 
opinion, agreed amomrst Ihrmsrlvcs to regulate their demand 
by the Charter of Massnrlnisetts Buy. 

4*^. Between the rejection of the fust American proj)osals, 
and the adoj)tion of the Article, which now stands in the 
Treaty, much strenuous contestation took place respecting 
the Boundaries, the British Negotiators demanding succes- 
sively to the Kennebec, to the Penobscot, and to the St. 
Croix. 

6®. No mention is made of any princi[)le a£^rccd upon by 
both Parties as the basis on which the conflicting territorial 
claims were to be adjusted. 

Enough has been stated to establish that what was laid 
down in the outset of tliis iufjuiry as the general inten- 
tion of the Treaty of 17S3, resulting from an examination of 
the preliminary expressions employed therein, is fully borne 
out by such additional information of an authentic kind, as 
can now be obtained resjiccting the ncirotiations, cither 
during their progress or immediately prior to their com- 
mencement. 'I'he instructions and correspondence of the 
American Negotiators coincide with the Treaty it.self, in 
showing that notwithstanding the conviction i)rofe.ssed by 
The United States of the '• clearness'' of their '-right,"' a great 
degree of uncertainty prevailed on both sides respecting the 
claims of either Party to the Territory in dispute, and that 
it was ultimately found best to cut the knot by a peremptory 
decision, resting on no principle but that <»f mutual consent 
and the obvious utility of removing any immediate cause of 
disagreement and collision from the intercourse of the two 
Countries. 

Having thus endeavoured to form, on grounds already ex- 
plained, a distinct and correct concc])tion of what the franiers 
of the Treaty had generally in view v.hon they defmod the 
Boundaries, in the absence of any settled line then existing 
between Massachusetts and the adjoining British Provinces, 
it may considerably advance the argument to know what 
notions were at that lime entertained of the country, to 
which both parties a.sserted a claim. No very detailed or 
perfect information can be expected to result from such an 
inquiry. The opinion of the American Congress lias just 



23 

been cited to the eflect that " probabihties" only can be 
"urged" with respect to a "rough, unreclaimed country." 
Some knowledge, however, though in many respects 
limited and inaccurate, most surely have existed of a 
region not wholly destitute of settlers,whichhadbeen travers- 
ed not long before by a body of Troops, and previously in- 
vestigated by an Officer in the public employment, and of 
which several maps exhibiting the supposed courses of the 
principal rivers and the general outline of the coast and bays 
had been published. That knowledge, whatever may have 
been its degree, must surely have reached the Negotiators of 
the Treaty: and there can be little doubt that in describing the 
Boundaries of The United States, they were more or less 
guided by its influence. 

The following are Extracts from Governor Pownall's 
" Topographical Description of the Middle British Ameri- 
'•'can Colonies," published in the year 1776: — 

" All the Rivers which have their sources amidst the northern ridges of this 
" preat range fall into Canada or St. Lawrence River, as the St. Francis, 
" Chandiere, and many others; all which have their sources amidst the eouth- 
" crt) ridges, yh// inlo the Hay of Fund e or info Ihe main ocean. 

" Connecticut River rises in north lat. 45" 10' at the Height of Land in 
" long. 4* east of the meridian of Philadelphia. 

" A rangfe running hence across the east Boundary line in New Hampshire, 
" in lat. 44^*^, and trending north east, forms the Height cf Land between 
" Ketwjebaig and Chau<liere Rivers; of the nature and course of this highland 
" I am totally uninformed. * * » 

"As the River Kennebaig has been now rendered famous as a pass by a, 
" march of sonx' spirit and enterprise, made by the Americans following its 
" course across tiie land to St. Lawrence, or Canada River, I shall here give 
" a more particular and detailed description of it than I should otherwise have 
" entered into. 

" This river in the year 1754 and 1735 was talked of as a route by which 
" an army might pass the best and shortest way to attack Canada and Que- 
" bee. * * # 

" When I was Governor of the Province of Massachusetts Bay, I had thi» 
" route particularly investigated by Ensign Howard, a country surveyor, under 
" the direction of Captain Nichols, who commanded at Fort Frederick. In- 
" stead of a short pass of some eight or ten miles of easy portage, this Indian 
'* path turned out to be a route on a line as a bird flies, of nearly fifty miles 
*' over land, impracticable to an armj/ that hath a train of artilleri/ and heavy 
" baggage. It appeare<l, however, (that although a difiicult and very labori- 
*' ous route) it was practicable to any body of men, who should go light armed 
" as a scouting party, either to reconnoitre or to break up settlements. Tlie 
*' sort of march which Arnold and bis people experienced has confirmed this 
" account, given 17 or 18 years ago. After taking possession of the Penob- 
" fknig country, I had all the eastern branches of this river traced to their 
" sources, and the communications between them and tlie waters of the Pc- 
" nobskaig scrutim'zed by constant scouting parties. 

" The River Kennebaig, to begin from its principal branch, may be described 
" Bs rising on the Height of Land, in north lat. 45'^ 20', and in cast long. 
" from Philadelphia 5'' 10' or thereabouts. 



24 

•* The nngn in York •nd CutnbrrUrid rouniir* irend to iha nnriliwird of 

•* Porili-f««f; thotf in the rouniy of Liiiroln, ea«l of Kenneh«i|r, next 'he rout, 

di> to likewise; but wiiliiri l«f.d ih- y Iri-iid niore and more to ihr ea*l of 

north-e»«f. All the hi-aili of Keimeljiiii:, Penoli»ca'(r and pH^i^'imaiiiinilii 

•' Rirrrt are in the Jleigh! of Land, luiming cakt-norlh-easi." — (pp. 15, 17, 

22.24] 

These extracts throw a strong light on tliis part of the 
inquiry, and serve to bring into one \mnt of view what was 
known, and wliat was not known, respecting the high ranges 
of land from whicli the jirincipal rivers to the east of Lake 
Champlain (falHiig. accortUngt o Mr. Pownall's threefold di- 
vision, filhrr into the St. Lawrence, or into the Ocean, or 
into the Bay of Ftnuly) derive their head waters. 

First, there is a range nmning in a north-easterly direc- 
tion from the source of tjic Connecticut Kivcr, forming 
" the height of land between Kenncbaig and Chaudiere Ri- 
vers." 

Secondly, there is the range, also termed " flcis^ht of 
Land,-' in which are situated " all the heads of Kennebaig, 
Penobscaig, and Passamaquada Kivcrs.'' This Hcii-'ht of 
Land runs "cast-north-east." and is raUier a j)rolongalion of 
the former range than a separate one. 

Thirdly, the tract of Country lying between this " Height 
of Land" and the St. Lawrence, is described as fifly miles in 
breadth, offering " a difficult and very laborious route,'' and 
one only practicable for Troops, when unaccompanied with 
artillery and heavy baggage. 

It must be added, that with the exception of the head wa- 
ters of the River Connecticut, which had been recently ascer- 
tained by an actual sur\-ey, the latitudes of the rivers at their 
respective sources appear to have been laid down with no 
great precision. Air. Pownall says, however, that on taking 
possession of the Penobscaig Country, he had '' all the eastern 
" branches of this river traced to their sources, and the com- 
" munications between them and the waters of Penobscaig 
" Bcnitinized by constant scouting parties." 

Speaking of the whole range of highlands at the head of 
the Atlantic Rivers nearest to the Connecticut, the author ob- 
serves as follows : " Between this high mountainous tract 
" and the Ocean, both in its northern and its eastern range, 
" there is a Piedmont of irregularly broken hilly land. Of 
" that, in the eastern parts of New England, especially cast 
*' of Penobscaig, I can say nothing with accuracy, and will 
" therefore say nothing at all."' p. 17. 

This, it must be allowed, is the language of an author 
scrupulously attached to truth : and, on the whole, it may 



25 



be inferred with safety from his work, that all the Rivera 
flowing itito the Atlantic between the Connecticut and the 
St. Croix were either known or supposed to have their head 
v>raters in a range of highlands, or mountainous tract, stretch- 
ing eastward with a strong northerly inclination ; and that 
less was known of the range in proportion as it extended to- 
wards Nova Scotia. 

It is hardly conceivable that such a work as Mr. Pownall's 
should have been unknown to the persons who negotiated 
the Treaties of 17S2-3, nor is it at all likely that much had 
been added to the topographical accounts of New England and 
the adjoining districts, between the period of its publication 
in 1776, and the conclusion of the Preliminary Articles of 
Peace. 

At an earlier period than either of those the Royal Procla- 
mation of 1763, described the Boundaries of the Province of 
Q,ucbec in the following terms. 

" Firstly. — The Government of Q,uebec, bounded on the 
" Labrador Coast by the River St. John, and from thence 
" by a line drawn from the head of that river, through the 
" Lake St. John, to the south side of the lake Nipissim ; 
" from whence the said line crossing the river St. Lawrence, 
" and the Lake Champlain in forty-five degrees of north lati- 
" tude, passes along the high lands which divide the rivers that 
" empty themselves into the said River St. Lawrence from 
" those which fall into the sea, and also along the north coast 
" of the Bay des Chaleurs, and the coast of the GvJfof St. 
" Lawrence to Cape Rosiers, and from thence crossing the 
" mouth of the River St. Lawrence by the west end of the 
" Island of Anticosti, terminates at the aforesaid River St. 
" John." 

The utter impossibility which is now known to exist, of 
joining the two extremities of the Line therein described as 
passing "along the high lands," and also "along the north 
(^oast of the Bay des Chaleurs," and a similar inconsistency 
which had been previously discovered and imperfectly re- 
medied in another part of the same boundary line, by the 
description of that line in its counterpart, the Quebec Act, 
render that document as well as the latter wholly inapplica- 
ble, for any geographical purposes, to the present question.* 

It is now time to consider the particular expressions of the 
Treaty in which the diilicuities of this Question are involv- 
ed, and it may be hoped that the precedir.^ inquiriea and re- 

* A further explanaiion of this will be hereafter giver. 



26 

marks will contribute effectually to their solution. The 
precise words of the second Article are these. '• From the 
*• north-west anelc of Nova Scotia, viz. that (ingU which is 
^^ formed by n line (froirn due tmrth from the source nf St. 
" Croix River to the Hiishlands, along the said highlands 
** which divide those Rivers that empty themselves into the 
" River St. Lawrence, from those which fall info the Atlun- 
" tic Ocean, to the north-westernmosf li'Nnd of Connecticut 
" River." 

This passage declares that the " north-west angle of Nova 
Scotia'' was to he the jwint of departure for the Boundary 
Line of the United States. What does the north-west 
angle of Nova Scotia mean ? The words which follow in 
the treaty explain its signification: " That angle which 
" is formed by a line drawn due north from the source 
*• of St. Croix River to the highlands.'' This definition, 
which was not in the Article as first jiroposed by The Tni- 
led States, and which was, therefore, in all probahility, made 
necessary by some subsequent consideration, evidently com- 
prehends two lines : the one artificial, viz : a due north line 
drawn from the source of the River St. Croix : the other, a 
natural line, fonncd by one of the most striking features of 
the country, that is to say, the '' Highlands."' The former 
of these Lines having been sufhciently ascertained for the pur- 
poses of this investigation,* the fir.st object of the present 
inquiry is to fix the proper sense of the term " Highlands*' 
as intended by the Treaty. 

It cannot be denied, with any apjwarance of reason, that 
in common usage the word " Hi^dilands'' suggests the idea 
of a mountainous tract or range of conspicuous elevations. 
Such is the idea we naturally convey in speaking of the 
Highlands of Scotland or of those of the Hudson River. By 
the word Highlander is meant, in general, a Mountaineer. 

It may safely be asserted that a tract or range of high bro- 
ken land, rising occasionally into eminences seen from a 
distance along the horizon, was in part known and in part 
believed to exist along the heads of all those Rivers which 
water the eastern parts of New England from the Connecti- 
cut to the Penobscot, and so onwards to the St. Croix. The 
passages which have been ([uoted from Pownall's " Topogra- 
phical description" confirm the justness of that impression. 

• An explorinjj line only, run by tlio compiss, with occmionul nllownnrei 
for tlie variution of the needle, has been irnced from the source of the St. 
Ctoix due north, by the Surveyorj under the Cfili article of the treaty of 
Ghtrit. 



fi7 



The very manner in which the term '• Highlands"' is first 
used in the Treaty is not indifferent as to the intention of 
the Negotiators in selecting a word, which was not neces- 
sary to the expression of their idea, when divested of all re- 
ference to visible elevation. The term " Height of Land" 
was well known in America, and frequently used in works, 
with which the Negotiators of the Treaty cannot be suppo- 
sed to have been unacquainted, to express any land immedi- 
ately separating head waters falling off on each side in op- 
posite directions. ■« We are not then at liberty to divest the 
word actually chosen by the Negotiators of its own proper 
signification, especially as it is used, in the first instance, 
without any epithet or qualification v/hatei^er calculated to 
chejige or modify the impression, which, taken alone, and 
by itself, it cannot fail to convey. The words of the definition, 
as quoted above from the Treaty, are " from the source of 
" St. Croix River to the Highlands ;'■ — to the Highlands 
positively, and without any addition. It is not till the ensu- 
ing clause, where the sam.e word is used again, not, as before 
for the purpose of laying down the point of departure of the 
northern Boundary Line, but in order to indicate the direc- 
tion which it was to take on leaving the point so laid down, 
that the Highlands are designated with reference to certain 
Rivers divided by them. 

It is not however intended to call hi question the indisso- 
luble connection svibsisting under the Treaty between tlie 
Highlands and the Rivers, but merely to enforce and keep in 
view the propriety of net entirely changing the natural cha- 
racter and signification of so prominent a term of the treaty on 
the very inadequate and erroneous grounds advanced by the 
Americans. 

Even on Mitcheirs map, to which the Americans are so 
a.pt to refer, there are traces of its having been thought at 
that time that elevated tracts or ranges of high land, more 
or less marked with conspicuous eminences, lay generally to 
the north of the Rivers falling into the Atlantic Ocean. On 
comparing that part of Mitchell's map with other parts which 
represent the known mount ainous regions, such, for instance, 
as New Hampshire, but little difference is perceptible in 
those graduated marks which are there used, as in other 
maps, to indicate liills or mountains. 

There is no doubt however, that, in fixing the true sense 
of the Treaty, the term "higlilands" must be taken in con- 
nexion with the words ■• dividing Rivers,'" which immediate- 
ly follow it in every instance but the first. These words 

u 



'i8 

themselv»^s must not be detarlu'd from the remainder ol' that 
flause. wliicli ffoes on to sjx>cify the j«rtiriilar Rivers divided 
hy tlje highlands in question, najnely, '• those that rnijity 

• themselves into the River St. Lawrence," and " those which 
• fall into the Atlantic Ocean." It thus becomes necessary 
to ascertain what Rivers are meant by the Treaty, in order to 
settle, with the requisite degree of clearn»j<s. along what 
Highlands, or parts of the Highlands, tlm IJomularv I.ino is 
to be drawn. 

There would be less diflienlty in decidni!^ this question if 
all the waters of the <lispiited Territory crime within om^ or 
other of the two classes s[)ecified above. Hut there arc other 
Rivers in that f>art of the Country, and these Rivers fall neither 
into the River St. l^awrence nor into the Ocean, but into the 
(lulf of St. Lawrence, (or more properly into the Ray of Cha- 
leurs,) and the Bay of Fiindy. 

It his been afllrmed on the part of the Americans that 
'the Treaty recognizes but two classes of Rivers,"' and, 
therefore it is inferred "that all the Rivers met by the duo 

• north lino Avhich do not actually empty themselves into 
'• the River St. Lawrence according toils known limits, are, 

• by the Treaty, considered as falling into the Atlantic 
" Oiccan.'' The assertion and the inference must alike be 
met by a positive contradiction. It is true that the Treaty 
only naTurs two di.siinet classes of Rivers in the clau.se under 
consideration ; Ituf the s;ime Treaty aft'ords abundant evi- 
dence that other Rivers, separate and excepted from the two 
classes, thus specifically named, were also in the contem- 
plation of those who carried on the negotiations ; and the 
very same clause of the Treaty contains an express limita- 
tion, which was evidently used on purjxiso to iirecludc the 
chances of misconstniction incident to a less cautious word- 
ing of the Article, and which, if that liad not been the case, 
it is very difficult to believe that the American Negotiators 
would have retained or admitted. 

The Article respecting Boundaries originated, as it has 
been stated, with the American Congress. Notwithstanding 
the alterations which it underwent in the course of. Negotia- 
tion, the term '' Atlantic Ocean," as apjdicd to the Rivers 
coniradistinguished from those which fall into the River St. 
Lawrence, remained in that Article. But although the two 
words remained, the prof)osition with which they were im- 
mcdialcly connected had experienced an cs.sential change. 
By the Treaty Article, the Eastern Boundary of The United 
States is made to pass along the river St. Croix. According 



29 

to the Article orginally drawn up by the American CongresSs 
and subsequently proposed by their Plenipotentiaries to that 
of Great Britain, the River St. John, from its source to its 
mouth, was to have occupied in the Treaty the place of the 
St. Croix. The result of carrying such a proposal into effect, 
would have been that the Highlands along which the Boun- 
dary Line was to pass, would have commenced near the head 
waters of the Penobscot, and as the line was to be carried 
westward, along those parts of the highlands which imme- 
diately divide the head waters of the Penobscot and Kenne- 
bec, both strictly Atlantic Rivers, from those of the Chau- 
diere, there was an evident and special propriety in employ- 
ing the more limited term, applied, as it then was, exclu- 
sively to rivers failing into the Atlantic Ocean. There is the 
more reason to believe that the adoption of this term is solely 
attributable to the position of the si)ot where the Highland 
Boundary was to begin, since it was substituted for the more 
comprehensive word " *S'e«," which appears in the corres- 
ponding part of the Proclamation of 1763, whence the Con- 
gress of The United States had, doubtless, borrowed the 
substance of many parts of their proposed Article. 

The Proclamation itself has been appealed to in proof 
that the terms " Sea" and '^ Atlantic Ocean" were synoni- 
mous. But in those parts of the Proclamation in which 
Boundaries are defined, and which were consequently drawn 
up with a closer attention to the expression, the Atlantic is ma- 
nifestly used in its limited and more appropriate sense as con- 
tradistinguished from the Gulfs with which it communicates. 
Referring to the Government of East Florida, the Proclama- 
tion limits it by the course of the River St. Mary's to the 
" Atlantic Ocean,'''' and " to the east and south by the Atlan- 
^' tic Ocean and the Gulf of Florida.''^ 

Nothing can be more clearer positive, than the distinction 
established in the Treaty Article between the Atlantic 
Ocean and the Bay of Fundy. 

The extreme western limit on the sea coast is described 
as formed by a line " drawn along the middle of St. Mary's 
River to the Atlantic Ocean.'''' The extreme Eastern limit 
is described as formed by a line '' drawn along the middle 
'• of the River St. Croix from its mouth in the Bay oj 
'•' Fundy,'''' &c. 

That Article after describing other parts of the general 
boundaries, concludes thus : 

■' Where the aforesaid boundaries between Nova Scotia 
•' on the one part, and East Florida on the other, shall hes- 



30 

*• PECTivELY touch the Bay of Fundy. and the Atlantic 
'• Ocean."' 

If one of tii'sj two icr.'iis is tu be taken a:s coinpreheiicled 
m the other, why sjxjcify both ? The dcchiration lliat the 
boundaries, eastern and western, of the United Stales, 
should touch the Atlantic at each extremity of the country, 
would surely have been amply sulFicient for all purposes of 
delimitation, had not the term • Jiay of Fundi/' been intend- 
ed as totally distinct from tlie term ' Atlantic Oaau.^' 

Maps, ProcUunations and Treaties, all concur in giving a 
distinctive and special apj)ollation, as well to the Bay of 
Tundy as to the Gulf of St. Lawrence. The lino of separa- 
tion between thi.s Gulf and the Kivcr of the siune name is 
established by the Royal Proclamation of 17C3. By similar 
authority it is that the Limits of the Bay of Finidy, as sepa- 
rated from the .\tl:uitic Ocean, have been established. The 
Charter of James I. to Sir William .VIexander, in 1621, de- 
scribes the Boundary of Nova Scotia as beginning at (.^ape 
Sable, and after extending thence to St. Mary's Bay, crossing 
by a direct line the entrance of the '-Great Bay' to the Si. 
Croix River. In the Commission of Mr. Montague Wilmot, 
(Governor of Nova Scotia, in 1703. the I^undary liine is 
tle.scribed as jiassing '' across the cntranrc of the liaij of Fun- 
" dy from Caj)e Sable to the mouth of the River St. Croix." 
Again, the mouth of the River St. Croix is declared by the 
Treaty of I7b3, to be •• in the Bay of Fundy." The Com- 
missioners under the Fifth Article of the Treaty of 1791, 
decided that the mouth of the River was at a point in " Pas- 
samaipioddy Bay ;" and tlie Treaty of Ghent declares the 
" Bviy of Passania(iuoddy to be yaxi of the Bay of Fundy." 

In all tlieso Documents the limits of the Bay of Fundy 
are sub.stantially the same, and (pjitc conformable to the 
Geographical character of the place. The position and 
limits of the Bay of P'undy being thus clear, and the contra- 
distinction between that Bay and the Atlantic Ocean being 
equally so in the Treaty, wlien speaking of the Sea Coast, 
it follows beyond controversy, that acccrdinglo the meaning 
of the Treaty, in this part of it, the Atlantic Ocean begins 
only where the Bay of Fundy ends, and that the framers of 
the Treaty, when tlius using the term Atlantic Ocean, had 
in view that part of the Sea, which lies westv/ard of the mouth 
of the Bay of Fundy. The United States mu.st, therefore of 
necessity, err, when interpreting the Treaty in such manner as 
to suppose the Bay of Fundy included in the term Atlantic 
Ocean, as a general pppcllalion applied to the Sea Coast. 



31 

The framers of the Treaty, when describing St. Mary's 
River as going '' down to the Atlantic Ocean," and the River 
St. Croix as having its mouth in the Bay of Fundy, had, no 
doubt, particularly in view the Coast of the Atlantic Ocean, 
which terminates at the Bay of Fundy, where the name of 
that Bay begins to have its appropriate and exclusive appli- 
cation. And this being the case, as beyond all controversy 
it was, is it credible that in the very next line of the same 
instrument ths same men should have used the same term of 
" Atlantic Ocean," intending that it should comprehend the 
whole Coast together with the Bay of Fundy and the Gulf 
of St. Lawrence, both of which are particularly marked on 
the map, and are universally known by their dictinctive ap- 
pellations, and with a similar precision of limits, as the River 
St. Lawrence itself ; these three names being, moreover, all 
of them used in the Treaty without description, as sufficient- 
ly distinguishing the several places which they respectively 
designate ? 

In answer to the American argument " that if the Rivers 
" which fall into the Atlantic through a Gulf, Bay, or Lilet, 
" known by a distinct name, are not under the Treaty of 1783, 
*' Rivers falling into the Atlantic Ocean, there is not a single 
" River that could have been contemplated by the Treaty as 
" such to which the description applies," it is to be observed, 
that the mention of St. Marifs River is alone sufficient to 
prove that there are Rivers considered by the Negotiators as 
discharging into the Atlantic Ocean without the intervention 
of any Bay or Gulf. It may be added that some of the Bays 
nentioned by the other party in support of his argument, are 
mere enlargements of the mouths of Rivers, and, like Penob- 
scot Bay and Sagadahock Bay, derive their names from the 
respective Rivers ; which names, moreover, are little known 
beyond the immediate vicinity of the place. 
• The Treaty Article expressly characterizes Rivers by re- 
jerence to their mouths. Speaking of the River St. Croix it 
las these words: "east, by a line to be drawn along the 
' middle ofthe St. Croix, /row its mouth in the Bay of Fun- 
" dij to its source." The River St. Croix being thus cha- 
racterized, as a River having its mouth, that is, terminating, 
in the Bay of Fundy, can never be a River falling into the 
Atlantic Ocean, between which and the River so described, 
a certain space, namely, a part of the Bay of Fundy, inter- 
venes. Still less, then, can the River St. Jolin, which falls 
into the Bay of Fundy considerably to the East of the St. 
Croix, and which is, therefore, more withm the entrance of 



as 

the Bay. be classed iimoiig the AtloJitic Rivers specified by 
the Treaty. On the other liaiid, St. Miirys River is desig- 
nated m the same Article as reachiiii^ the Atlantic Ocean. 
P'or the south boundary line pjtsses " along the middle of St. 
" Mary's River to the Athmtic Ocean ;" while it is described 
in the same article, as " touchinif the Atlantic Ocean." Now, 
if the boundary line {Kisses along St. Mary's River till it 
touches the Atlantic Ocean, it is evident that there is no in- 
terval between the River and the Ocean, but, on the contrary, 
that where the former terminates, the latter begins. In this 
manner we see that the two Rivers dilfer essentially in that 
particular characteristic by which the Treaty has distinguish- 
ed them ; and thus two classes of Rivers, comprising respec- 
tively the one and the other of the two individual rivers just 
named, and both being distinguished from those Rivers which 
fall into the St. Lawrence, are clearly e.xhibited in the 
Treaty. 

If these rea.sons are sufficient to satisfy any reasonable and 
impartial mind that, in the interpretation of the Treaty, the 
Bay of Fimdy must be considered as separate and contradistin- 
guished from the Atlantic Ocean, there can be no doubt as to 
the obligation of rcL'ardiug the Gulf of St Lawrence and the 
Bay of Chaleursas ecpially distinct and unconnected ni any 
Treaty sense with the main Ocean. 

It has been asserted on the part of the United States, that 
tlie Gulf of St. Lawrence is designated in the 3d Article for 
a sjiecial purpose, foreign to the (juestiou of boundaries, and 
that it is further mentioned as a place in the Sea. The words 
of the .fVrticle are these: ''The })eople of the United States 
" shall continue to enjoy, unmolested, the right to lake fish of 
" every kind on the Grand Riiik. and on all other Banks of 
" Newfoundland ; also in the Gulf of St. Lawrence, and at 
"all other places in the Sea, where the inhabitants of both 
" Countries used at any time heretofore to fish." 

It is perfectly true that the Gulf of St. Lawrence is desig- 
nated in this Article with reference particularly to the right 
of fishing, and not to any question comprized in the Second 
Article. But it is eijually true that there is no reason, with 
respect to that question, why it should have been named at 
all in the Treaty. That the Bay of Fiindy and the Atlantic 
Ocean are contradistinguished from each other, has been 
proved to demonstration. Such being the case, the due 
north line, as will be shewn yet more convincingly hereafter, 
could not have been intended to intersect the River St. John ; 
and unless the eastern Boundary Ime were to intersect that 



33 

river, and lo pass considerably to the north of it. there would 
be no question either of its crossing any streams falUng into 
the gulf of St. Lawrence and the Bay of Chaleurs, or of its 
terminating at any point immediately in their neighbourhood. 
Yet the Gulf of St. Lawrence, when mentioned in the Trea- 
ty, with reference to another subject, is named in a manner 
which marks its being known as having certain limits, a pe- 
culiar character, and separate jurisdiction, and v/hicli, in short, 
distinguishes it entirely from the Atlantic Ocean, except in 
so far as it is a part of the sea, of which the Atlantic Ocean 
also is a part. 

The Bay of Fundy and the Gulf of St. Lawrence being, 
therefore, taken as distinct from the Atlantic Ocean, of which, 
more especially under the limitations of the Treaty, there 
can no longer be question, it follows, that the Rivers, which 
fall into those separate and distinct portions of the Sea, must 
be considered as forming another class of rivers, such as 
writers* on the topography of North America have in part 
noticed, and to which the Treaty indisputably points. Of 
this class of rivers two only are immediately in question, 
namely, the Restigoiiche, falling into the Bay of Chaleurs, 
itself joining the Gulf of St. Lawrence, and the >S'^. John^ 
which falls into the Bay of Fundy. These rivers cannot, 
therefore, belong to the class of Atlantic Rivers specified in. 
the Treaty ; and, consequently, it is not true that '' all the 
rivers met by the due north line, which do not actually 
empty themselves into the River St. Lawrence, according 
to its known limits, are, by the Treaty, considered as fall- 
" ing into the Atlantic Ocean." 

This is not all : there are other lights to guide us to a true 
interpretation of the Treaty, and to shew with sufficient 
clearness what Highlands were meant to be designated in 
its Second Article. 

The United States proposed at first the River St. John as 
a part of tlieir Boundary on the side of Massachusetts. The 
Line, as described in the instructions of Congress, was " to 
'* be drawn along the middle of St. John's River, from its 
'' source to its mouth in the Bay of Fundy." On Mitchell's 
map the course of the St. John, as to length and general di- 
rection, is laid down nearly as in maps of the present day. 
It appears from the Report of the Committee of Congress, 
which has been noticed above, that " when the Boundaries 
'' of The United States were declared to be an ultimatum, it 



II 



See Pownall's topographical description. 



34 

•' Was not thought advisable to continue the War, merely* 
'' to obtain Territory as far as St. John's River." And fur- 
ther, it has been shewn by untiuestionable onthority, that in 
the course of the negotiations at Paris, Great Hritain claimed 
as far west as the Penobscot and Kennebec Rivers. 

Combining these several circumstances, it is perfectly in- 
conceivable that the Hritish Government could ever have in- 
tended by the Article, wliich they ultimately agreed with 
the United States in concluding, to carry the Iloundary Line 
to the north of the St. John, and by that means, as it has 
been since ascertained, to make over to an indep<^ndent Go- 
vernment a much larger extent of Territory than they tliem- 
se'ives retained towards the Coast by adopting the St. Croix 
as the Eastern Boundary Line. 

The sacrifice on the part of Great Britain would not have 
been confined to the loss of a certain ninnber of square miles. 
The direct communication between Nova Scotia and Canada 
would have been thereby surrendered, and lands in depen- 
dence on Canada would have been transferred to the 
United States, no longer having the character of British 
Colonies, but that of IndejKudcnt Sovereignties. So far 
from Great Britain receiving under the Treaty any compen- 
sation for such sacrifices, her Negotiators had already made 
other sacrifices of no inconsiderable amount in settling the 
eastern and northern Boundaries of Mass-nchusetts. By con- 
senting to take the St. Croix for a Boundary they had rece- 
ded from their claims to the Territory extending westward 
along the coast from that River to the Rivers Penobscot and 
Kennebec. By consenting to the line of Highlands propo- 
sed in the American Instructions, they gave up to Tiie 
United States all that Territory which is situated betv/een 
the Highlands, extending along that part of the line, as to 
which the British and American Commissioners are agreed, 
and the northern Boundary of the old Province of Maine. 
The limits of this Province, it is well known, were regulated 
by Charles the First's Grant to Sir Ferdinando Gorges ; and 
the northern limit, according to that grant, was a line drawn 
westward from the River Kennebec to tlie River Pisratoqita, 
at a distance of 120 miles from the mouth of each River. 
The head waters of the Kennebec being at a much greater 
distance than 120 miles from the Atlantic Ocean, a considera- 
ble interval was necessarily left between the northern limits 
of Maine, regarded as co-extensive wufh the Grant of Sir Fer- 
dinando Gorges, and the above mentioned Highlands, in* 
which the head waters of the Kennebec are situated. To 



35 

this intermediate Territory il M'-ould have been impossible for 
The United States to substantiate their claim under the Char- 
ter of Massachusetts ; which Colony acquired the territory by 
purchase. The outline of this Grant is traced on Mitchell's 
map in strict conformity with its true description. 

Supposing, what is most probable, that the conflicting 
claims of the two Parties were so balanced, or rather so in- 
volved in confusion and obscurity, as to offer no clear and safe 
principle for their regulation, but that of mutual convenience 
and conciliation, the Territory intervening between the Ri- 
vers St. Croix and St. John was surely but a wretched equi- 
valent for those extensive parts of the British Claim which 
were given up to The United States. Supposing on the other 
hand, notwithstanding the strong and convincing evidence 
already furnished to the contrary, that the final adjustment 
was grounded on some specific principle of right, of what 
such principle, at all capable of application to the whole ex- 
tent of disputed Boundary, is there the slightest trace ? The 
charter principle, as we have seen, would have thrown the 
old Province of Maine, and consequently the northern limits 
of Massachusetts, in that quarter, considerably to the south 
of the Highlands. The same principle, applied to the Sa- 
gadahock Territory, would have carried those limits, at the 
northern extremity of its east boundary* to the River St, 
Lawrence. The principle of the proclamation would have 
confirmed the Line of Boundary between that River, from 
the point where it is struck by the parallel of 45° north lati- 
tude, and liake Nepissim, as proposed in the American In- 
structions. A combination of the two principles is equally 
ineffectual to explain what must be termed the anomalies of 
the Treaty arrangement, on any supposition but the natural 
and necessary one of its having been grounded on mutual 
convenience, since neither Charter nor Proclamation could 
have warranted the Parties in carrying the Boundary Line, 
as it -was actually settled to be carried — not, as the latter 
would have prescribed, to the north of the Great Lakes, nor, 
as the former indicated, along their southern shores— but 
through the centre of those inland Seas, and along the mid- 
channels of their respective water communications. 

It is not the interest of Great Britain and her Colonies that 
is alone concerned in this discussion. A common interest, 
the interest of the Treaty, and of both Parties is at stake. 

In an early part of these remarks it was shown that in tlie 
absence of any express principle specially applied to the ques- 

* TLi» is explained Lereafter. 
F 



36 

lion orbouiidariea, except that of scitling ihem so as to pre- 
vent tuture disputes, the general intention of the Treaty, as 
declared in its preamble, was to adjust tlicm in such a manner 
as to "secure to both ("ountries perpetual peace and har- 
"mony" by establishing " a satisfactory and beneficial ijiter- 
" course" between them, " on grounds of reciprocal advan- 
•' tage and mutual convenience." It is evident, with res- 
pect to the Boundaries, that nothing was more likely to aid 
this wise and benevolent object of the Treaty, by prevent- 
ing collisions, and promoting good neighbourhood between 
the Parties, than the adoption of a Line which should have 
the effect of placing the rivers and principal water courses 
of their res]>ective Territories entirely within the roach of 
•ach. On this momentous ground, which involves tlie high- 
est considerations alTecting the welfare of human societies, 
as well as on those which have been previously advanced, 
is rested the firm moral conviction that the framers of the 
Treaty could not p<^ssibly have contemplated so entire a 
departure from the principles of that instrument, as the form- 
ing a Boundary between Nova Scotia and Massachusetts, 
which would have the effect of throwing the upper half of 
the St. John. — the most important river of the country, — 
within the Territory of The United St.ates. Equally diffi- 
cult is it to conceive that, if they had obtained such an un- 
derstanding with Great Britain, the American Commis- 
sioners, who were naturally more alive to the exclusive 
advantage of their States, and from long and familiar ac- 
quaintance with Colonial interests, were by no means likely 
to expose them to risk by an oversight in the wording of 
the Treaty, should have allowed the term " Atlantic Ocean" 
to remain in its Second Article after the substitution of the 
St. Croix f*^r the St. John, the proposal of which last men- 
tioned River, ''from its source to its mouth,''' was to all rea- 
sonable appearance, the cause of its first introduction into 
that Article, in place of the more comprehensive word " Sea," 
employed in the Proclamation of 1763. 

It follows, of necessity, from the whole of what precedes, 
that the Highlands intended by the Treaty are to be looked 
for south of the River St. John. The American Negotiators 
having desisted from their demand of that River, and the 
British having equally rejected the substituted proposal of 
deferring the settlement of the Boundary till after the con- 
clusion of Peace, an arrangement carrymg with it the con- 
sequcncps of yielding to The United States at once a greater 
extent of territory thau that which was comprised in the ac- 



37 

Ceptance of the St. John as a Boundary, without any recip' 
rocal advantage to Great Britain, but with results most in- 
jurious to her just and necessary interests, and also in direct 
contradiction to the governing principle of the Treaty, maybe 
fairly, and without hesitation, pronounced to be impossible. 

What reasons may have prevailed with the Negotiators, 
on the supposition that they intended to designate Highlands 
to the south of the St. John, as those which the due north 
line was to meet, not to declare that specific intention by an 
additional clause of the Treaty, can now be only matter of 
conjecture. But strong probabihties are not wanting to aid 
the discovery of the truth even in this particular also. 

In the first place, by retaining in the clause respecting 
Rivers and Highlands the term " Atlantic Ocean," in con- 
nection with the limited sense unequivocally attached to it 
in another part of the same Article, the British Plenipoten- 
tiary might have reasonably hoped to preclude any future 
disagreement on the subject. In the second place, the in- 
sertion of a definition of the north-west angle of Nova Scotia, 
calculated to obviate any embarrassment which might spring 
out of the use of that term as a known and settled point of 
departure with reference to the Colonial Boundaries, may 
also have contributed to satisfy him as to the efficacy of the 
wording; as it now stands in the Treaty. 

It may surely be assumed that the Negotiators meant to 
define the Boundary in a spirit accordant with the just and 
liberal views declared in the preamble of the Treaty. If it 
had been possible to describe the whole Boundary Line with 
minute exactness, their desire to prevent future disputCvS 
would doubtless have led them to do so. But they evidently 
did not possess the topographical details necessary for such 
extreme precision. The Boundary w^as, therefore, of neces- 
sity, to be defined in general terms. A glance on Mitchell's 
Map w^as sufficient to shew them, tliat a due north Line 
could not be drawn from the source of the St. Croix to the sup- 
posed latitude of (he head waters of the Atlantic Rivers, flow- 
ing westward of that River, without a probability of its stri- 
king some of the smaller and very inconsiderable lakes or 
water courses falling into the St. John. To have changed 
the grand features of their agreement, on account of this 
petty consideration, would have been unwise ; and at the 
same time, there was an obvious and disproportionate incon- 
venience in guarding in express terms, against a mere contin- 
gency of no practical importance. Again, they nnif t have 
known that a cojisidcrable part of the Boundary Line would 



3S 

be traced along the Highlands situated nearest to the head 
waters ol" the Connecticut, and ininiediatcly dividnig the 
Kennebec from the ('haudu r<.v All Parties agree that tlie 
words ol' the Treaty apply, without shadow or possibility of 
doubt, to that portion at least of the Highland Boundary. 
The Highlands, which were knoxin to range along the 
sources of the more Eastern Atlantic Rivers, were believed 
to be a continuation of the others. In order to frame a de- 
finition more nicely and literally adapted to the varying cir- 
cumstances of the Line, as thus prolonged, it would have 
been necessary to obtain an exact knowledge of that part of 
It, where the chang*- of cinMimstanccs was to operate ; and 
tliis degree of precision, as already olisorved, was necessarily 
unattainable from the Uionient that the source of the St. 
John had ceased to be in view as the proj)osed north-west 
angle of Nova Scotia. The due north Line was intended to 
strike Highlands to the south of the River St. John. At 
the fK)mt of intersection, tlie lioundary was to be carried 
west in such a manner as to place all the rivers flowing on 
that aide of the St. Croi-x. and consequently Atlantic Rivers, 
within the Territory of The United States. Towards the 
other extremity, there was that large portion of the High- 
land Line, respecting which both Parties are agreed. Upon 
these data, it is by no means extraordinary that the Negotia- 
tors should have fallen into tlic error (for such the pending 
dilTerence authorizes us to call it) of supposing that they had 
sufficiently provided, by the present wording of the Treaty, 
for the dur direction of that part of the Line, which was 
intended to unite the point of departure on the North Line 
with tiic north-westernmost head of Connecticut River, by 
joining on to that other jxirt of the same Line which imme- 
diately separates the sources of the Kennebec from those of 
the Chaudiere. 

These probabilities, which"are'not put forward as known 
undoubted truths, being nevertheless, such evidences as the 
nature of the case admits, must have their weight in remov- 
ing the objection to which they immediately relate, and 
must contribute, in that respect, to confirm and fully estab- 
lish the position previously maintained on such just grounds, 
and ])y so many cogent and convincing rea.sons ; namely, 
Hint, thr Hi ^/t lands of the Treaty were mrant to be fixed to 
the south of the St. John. 

If, on the other hand, it be supposed, notwithstanding so 
many proofs to the contrary that it was the intention of 
the Nejjotialors to carry tjip due north 'line to that point. 



39 

■which the Americau argument maintains to be the true 
north-west angle of Nova Scotia, the silence which they 
have kept with regard to the intersection of the River St. 
John is really very difficult, if not impossible, to explain. 
Such silence is, on that supposition, the more inconceivable, 
since it must be agreed that a principal object of the Treaty 
was to separate the rivers along the adjoining part of the 
frontier, and to place within the Territories of the respective 
Parties the whole of each class of rivers so separated. The 
motives and evidences of this intention are so numerous and 
convincing, that even if it were true, as the American argu- 
ment asserts, that no sufficient criterion for determining the 
direction of the northern Boundary Line is to be found, un- 
less the precise meaning which that argument assigns to 
what respects the dividing rivers be received without quali- 
fication, there would be still wanting sufficient grounds to 
justify a decision in favour of The United States. But this 
miaginary defect of the Treaty is, in truth, the mere off- 
spring of a partial and unwarranted view of its terms and 
intentions. 

There is no longer any real difference respecting the East- 
em boundary of the United States. The diiRculties which are 
now experienced, regard their Northern boundary, which is 
to pass along the Highlands designated in the Treaty as 
dividing certain rivers. What rivers they are, which are 
thus to be separated, has been abundantly shewn above. It 
has been proved that the Highlands in question were meant 
to be found south of the River St. John, and, also, that no 
river east of the St. Croix comes within the class of Atlantic 
Rivers specified in the Treaty. Hence, it is clear, that in 
carrying the boundary line westward to the Connecticut, 
the sources of the Atlantic Rivers are to be left entirely 
within The United States' territory, and those of the St. 
John, which intervene between the former and the head 
waters of the Rivers falling into the St. Lawrence, are to be 
left within the British line. The American argument has 
givenrto the Treaty expression " dividing Rivers," a narrow- 
ness of signification which is by no means borne out by the 
words themselves. The intention being clear as to the Ri- 
vers to be separated and therefore to be left within the terri- 
tory of the respective parties, any highlands rising above the 
heads of one set of rivers to be separated must necessarily 
divide those rivers (in this instance the Atlantic Rivers) 
from the otlirr set of rivers named '\n the Treaty, although ^ 
they may not extend equally along the jtourscs of these last }- 



40 

mentioned rivers. If this liad not been \\\e opinion of tho 
neKOtialors, il may fairly be piresunicd that they would have 
adopted some more precise term in explanation of their parti- 
cular meaninc, and tliat the term '' Atlantic Ocean" would, 
with rtiuai certainty, have been exchanged for some other 
of a more comprehensive sense. To go the length of su]>- 
plying the supposed omission and of enlarging the supposed 
limitation by a license of construction which cajinot be ad- 
mitted without defeating the general views of the Treaty, 
as declared by its introductory terms, and further established 
in the foregoing jxiges, is a course of j>rocccding dangerous 
m its example, and tending to introduce a new and unsound 
practice in the interpretation of Treaties. 

The point of (Icjvnrturc for tracing the boundary line is 
to be found wlicre the due nortli line drawn from the St. 
Croix touches the Highlands soutli of the River St. John. 
It has been shewn above that the existence of such Higliliuids 
was, to all appearance, a matter of general jxirsuasion at tho 
f>criod of 17b3, and several years before. That such has 
since continued to be the impression, there is no inconsider- 
able evidence to establish. 

In the year 1702 the Government of Massachusetts sold, by 
contract, to two individuals, natned Jackson and Flint, cer- 
tain lands, the limits of which are thus described in the con- 
tract relating thereto, " Westerly, by a line on the east side 
** of the great eastern branch of Penobscot River, at the dis- 
" tance of six miles therefrom ; easterly^ by the River Scoo- 
" diac, and a line crtciidiv^ iwrtficr/y from the source thereof 
*^ to the Highlands ; and. northerly, by the Highlands, or 
" by tlie line described in the Treaty of Peace between Tlie 
'* United States and His Britannic Majesty.'' From this 
description of thyiimits in question it is clear that the North- 
ern Boundary of The United States, as determined by 
Treaty, was to be the northern limit of this tract, and also 
that, in 1792, the Government of the State of Massachusetts 
considered the great eastern branch of the Penobscot River 
as reaching to the Highlands which form tliat northern 
Boundary. 

In an early edition of Greenleafs map of Maine, the limits 
of Flint and Jackson's purchase appear to be marked out. 
though without the names, in conformity with the terms of 
the document quoted above ; the line being therein represent- 
ed as terminating on the Highlands in which are situ- 
ated th<^ head u'at».rs of tlie P«>n<^hsrof and othrr Atianti'" 
Rivers. 



41 

The '•' Statistical Viev/ of the District of Maine," pub- 
Ushed in 1816, by Mr Greenleai', the American author, whose 
map has just been referred to, confirms the correctness of the 
conclusion to which the terms of the above-mentioned pur- 
chase inevitably lead. 

The following is an extract from that work, " With the 
*' exception of a small tract at the eastern extremity, and 
" some detached elevations along the central part of the 
"north-western Boundary, the mountainous part of the dis- 
" trict may be included within, an irregular line drawn from 
" the line of New Hampshire, not far from Saco River ; 
" thence proceeding north-easterly, and crossing Andros- 
'' coggin River near Dixfield, Sandy River above Farming- 
" ton, Kennebec River above Bingham, the west branch of 
" the Penobscot at the Lake Pemmidumpkok, and to the 
" East branch of the Penobscot near the mouth of the 
'' Wassattaquoik ; thence north so far as to include the heads 
" of the Aroostook ; thence south-westerly to the head of 
" Moose-head Lake, and thence westerly to the Boundary of 
" the district near the sources of the Du Loup. The great- 
" est length of this section is from south-west to north-east ^ 
" about 160 miles ; its greatest breadth about 60 miles; and 
" it comprises about one-seventh part of the district. No 
" observations have been made to ascertain and compare the 
'' height of the different elevations in this section ; but from 
" estimates which have been made on the falls of the rivers, 
" proceeding from different parts of it, and from the much 
" greater distance at which the mountains in the western 
" part are visible, it is evident that the western, and parti- 
*' cularly the north-western part, is much higher than the 
*' eastern ; and the section in its whole extent may be con- 
" sidered as presenting the highest points of latid between 
" the xitlantic and the St. Lawrence?'' 

This very explicit passage permits no doubt as to the fact of 
there being at least as far east as the head waters of the eastern 
branch of the Penobscot, and as high north as the head waters 
of the Restook, a tract of mountainous elevations, answering in 
every respect to the Treaty term of '■'■ Highlands," and con- 
nected with the range which is situated immediately between 
the sources of the Kennebec and Chaudiere Rivers. 

That there are Highlands so situated, with reference to 
those just described, as to offer a suitable place for a point of 
departure from the due north line, has been proved by the 
Reports of the Siu-veyors and Commissioners under the 5ih 
Article of the Treaty of Ghent. 



There WoiilJ bene pOi;:5ibility of executing Treaty provi- 
sions, such as are now under consideration, if tlie utmost 
degree of precision were required, and if no allowance what- 
ever was made for the unavoidable want of an exact local 
knowledge on the jxirt of the Negotiators. It is one thing to 
define a boundary in general terms, another to descril>e it 
with a minute attention to details. The jvorties to the Treaty 
of 17S3 did not possess the means of jx^rforming the latter 
office. They could only act upon the general ideas which 
they had then obtained of the state of the frontier country. 
They had no reason to doubt that Highlands, in which were 
situated the sources of the Atlantic Rivers, properly so called, 
extended across the meridian of the St. Croix, towards the 
Ct John. They can hardly be reproached wiili not having 
sent a Commissioner from Paris, the seal of their negotia- 
tions, in order to ascertain, by actual measurement, the cor- 
rectness of so reasonable a sup]X)sition. They did, however, 
wiiat an inspection of Mitchell's map was wlII calculated to 
suggest. They agreed to form the Eastern Boundary of The 
United Stalesby drawing a due north line from the source of 
the St. Croix to the Highlands, which the greater length of 
the course of the Kennebco and Penobscot Rivers, as com- 
pared with that of the St. Croix, was likely to render neces- 
sary. The details were unavoidably reserved for future set- 
tlement by means of an actual survey and delimitation. 

It was to be oxjxjctcd that in making that survey and 
tracing the boundary line along the surface of the country, 
the localities would not be found to correspond minutely with 
the idea which had been previously formed of them. Whe- 
ther it be supposed that the Highlands were intended to 
have the character of hilly or mountainous heights, or 
whether they were considered as mere lands, immediately 
separating the head waters of rivers, it is clear that there was 
more than one chance against their being found in strict 
conformity with the Terms, in which c\'cr way they miglit 
be interpreted, of the Treaty. In one case the due north 
line might fail to reach any place of suflicient elevation ; in the 
other it might be prolonged, even to the St. Lawrence, with- 
out intersecting any spot exactly i:ituatcd between the liead 
waters of the Rivers specified in the Treaty. The same dis- 
appointment might have been anticipated in drawing the 
north boundary line along Highlands, of whatever designa- 
tion we suppose them to be. It appears that the peculiar 
characteristic of the river-heads throughout the disputed Ter- 
ritory, is to interlock with each other and frequently to form 



43 

into large pools and spreading morasses. The defects in the 
line might indeed prove so numerous as to operate a decided 
change in its characteristic qualities, and render it altogether 
unfit for the application of the Treaty. But if every devia- 
tion from the strict rigour of definition, — an occasional break 
or the intervention of a swamp or valley in the line of High- 
lands — the want, in fine, of a single link in the chain, is to 
defeat and nullify the whole design of the Treaty, it will be 
extremely difficult to conceive by what means any arrange- 
ment is to be effected, or how it will be possible to satisfy 
either the one or the other of the claimants. 

The place, called Mars Hill, is that which Great Britain 
claims as the point of departure for the northern boundary 
of The United States, and consequently as that spot which 
is designated in the Treaty as the north-west angle of Nova 
Scotia. It appears from the reports of the Surveyors, that 
the due north line crosses its eastern skirt, or flank, at a dis- 
tance of about 40 miles from the monument, which marks 
the source of the St. Croix, as fixed in execution of the 
Treaty. 

There are three ponits to be considered with respect to 
this elevation : l'^. Its height as compared with that of the 
country previously traversed by the north line ; 2'-'. Its po- 
sition relatively to the rivers; 3°. Its connection with the 
western range of Highlands. 

With respect to the comparative height of Mars Hill, it will 
suffice to quote the following words of the American Sur- 
veyor : " The south peak is 175 feet higher than the north 
" peak, and about 1000 feet above the general level of the 
■'adjacent country." This description is decisive of the 
superior height of Mars Hill, and the concurrent testimony 
of the Surveyors shews that no ground equal to it in eleva- 
tion, by many hundred feet, is previously crossed by the 
North line. 

The situation of Mars Hill, with respect to Rivers, is not 
to be taken, as the American argument insists, from the petty 
streams or rivulets falling into the St. John, in its immediate 
neighbourhood. Its principal summits are situated at a short 
distance westward of the north line, and consequently in the 
position intended by the Treaty, on that Highland tract whicli 
rises to the north of the Atlantic Rivers, and separates them 
as well from the Rivers of the St. Lawrence, as from the 
River St. John and its principal tributary, the Restock 
The due north line does not indeed pass over its highest 
peaks: but it is sufficient for every liberal and eflective pur- 

G 



44 

pos^ uMlie Treaty, that ihu liiH," intersects the rising groiuuls 
v.'hich form its elevation IVoui the ba:iks of the St. John. 

As to the third |)oint, the British Surveyor, Bouchette, u\ 
his Report dated the 21st of May, 1818, observes, that he 
took " the bearings of tho principal range of highlands cx- 
" lending from Mars Hill to iho Catahdin Mountain ; the 
" general course of which is N. N. E. and S. S. W., and 
" highly conspicuous for its height.'' Anotlier of the Sur- 
veyors, Odfll, states in a report filed the 1 lih of May, 1819, 
as follows: '"Looking westward from this jilace (Parks's, 
"near the Iloulton Settlement,) v.hich is itstlf considerably 
" elevated, and is easily seen from the lop of Mars Hill, there 
" appears a continued range of liighland, the view of which 
•' is terminated on one side by Mars Hill, and on tlie other 
•• by the Sj)cncer Mountains." The general result of these 
documents with respect to Mars Hill and tlie adjacent licights 
towards the weBt, is that ''A generally hilly country is found 
'• to extend towards the eastern branch of the River Pcnob- 
" scot." This is confirmed by the roj^ort of the American 
Surveyor Lnring, dated in December. Ib2(). It may be added, 
that the British Assistant Surveyor, Campbell, describes the 
Highlands where the Monument is situated on the height of 
land between the Kemiebec and Chaudiere Rivers as extend- 
ing in a N. E. to E. N. E. direction, and consequently tend- 
ing toconmiunicate with the HighUmds at the sources of tho 
Penobscot River. 

The foregoing information will hardly warrant us in con- 
cluding that the tract or range of highland country stretching 
from Mars Hill, or its immediate nciirhbourhood, towards the 
sources of the Connecticut, is equally continuous and of one 
imbrokcJi regularity throughout tlie whole extent of the 
Boundary Line. But such continuity of height was not to 
be cxiHJCted, nor is it necessary for any presumable purpose 
of the Treaty. It does, however, appear that tiiere is a chain 
of highlands, not indeed of uniform elevation, but in which 
the head-waters of the Atlantic Rivers are situated, with the 
additional circumstance of their partaJving generally of a 
mountainous or hilly chnracter. 

It has been urged on the part of the United States, that 
the three prepositions ^- from;' '• along,'' and •• /o," employ- 
ed in defnimg the northern boundary line, '• are the clearest 
" and strongest wliich could have been selected for the pur- 
" pose of declaring that the boundary, thus described, must, 
'• throm^h its whole extent, from iti> beginning to its termi- 
'" tuition, be alon^ highla'.ids." such as tliey presume the 



45 

Treaty to have intended. This remark is, indeed, made on 
grounds which do not apply to the view taken by Great 
Britainof the same subject. It is, nevertheless, to be ob- 
served, that in two acts of the highest authority connected 
with this discussion, a Royal Proclamation and an Act of 
Parliament, the very same prepositions are used in order to 
describe lines, which have since been discovered to be too 
imperfect to admit of their being traced in conformity with 
this description. The Acts alluded to are the Proclamation 
of 1763, and the Uuebec Act. The boundary described in 
the Proclamation has two evident interruptions in the course 
of its line, notwithstanding the use of the three prepositions, 
to which so much efficacy has been attributed. In the first 
place, the line, which is described as passing along the high- 
lands, and also along the coast of the Bay des Chaleurs to 
Cape Rosiers, has an intermediate space to traverse between 
the highlands, wherever they may terminate according to 
the supposition hitherto maintained, and the north coast of 
Chaleurs Bay, for which no provision appears to have been 
made by the terms of the Proclamation. Secondly, there 
is a similar interval between Lake Champlain and the op- 
posite extremity of the highlands, which do not extend to 
the shores of that Lake. According to the Quebec Act, the 
line v/as to go from the Bay of Chaleurs, alo7ig the High- 
lands, &c. to a point in 45*^ north latitude, on the eastern 
bank of the River Connecticut, keeping the same latitude 
directly west through the Lake Champlain. This amend- 
ment of the Proclamation itself occasioned a fresh difficulty, 
which it was subsequently found necessary to obviate in the 
Treaty. A line described as passing along the highlands in 
which the sources of the Connecticut are situated could ne- 
ver, it is manifest, have reached a point on the bank of that 
river at a considerable distance below its sources. What 
relates to the want of continuity between the Bay of Cha- 
leurs and the Highlands is the same in the Act as in the 
Proclamation. 

There is a further consideration relating to Mars Hill, 
which embraces one of the arguments most urged by the 
United States in support of their line, as identified in their 
opinion with that of the ancient boundaries, and which it is, 
therefore, convenient to notice separately. 

The Treaty, as we have seen, fixes the point of departure 
for the Northern Boundary of the United States at a place, 
where the due north line, drawn from the River St. Croix, 
touches the Highlands. To that place; wherever it may 



46 

}iappen to be, the Treaty has giveti the naine of •the north- 
\cest angle of Sova Scotia ,'' and this expression it is, which 
IS in fact the principal, and essentially the sole, foundation 
of the American claim. The supposition of a perfect iden- 
tity between the line, as now proposed by The United States, 
and the ancient provincial boundary, is at the bottom even 
of that pari of their argument, which turns on a literal inter- 
pretation of the Treaty Article. Without this supposition, 
— which is altogether conjectural, and incajmble of satisfac- 
tory proof, and the merits of which cannot be fully discus- 
sed without unsettling what the Treaty was most certainly 
intended to settle in a |>eremptory and conclusive manner, — 
The United Stales can make no progress whatever towards 
^ettlng aside those iminirtiuit linutalioiis, which the words 
of the second Article of the Treaty, as already explained, 
do most undoubtedly convoy. They seem to have over- 
looked an inconvenience and striking objection which neces- 
sarily result from this mode of treating the question, namely, 
that they apjily themselves thereby not to the completion of 
their own boundary, nor to the adjustment of such part of 
the Brilisii boundary line, as corresponds immediately with 
their own. but to the regulation of oilier parts of the British 
Boundary, — tlic northern boundary of Nova Scotia, for in- 
stance, — with which th«y have no right whatever to inter- 
fere, and the final ariftngement of which is now, as it always 
has been, wholly and exclusively in the competency of the 
British .'\uthoritics. Such was not the object and intention 
of the Treaty of 1783, the second Article of which, as we 
have already proved, concerns the definition of The United 
States' boundaries alone, and aflfects the boundaries of tho 
British Colonies only in those parts of the frontier where the 
territories of the one party border immediately on the terri- 
tories of the other. 

The words " north-west angle of Nova Scotia" were in- 
troduced into the Treaty from the article respecting bounda- 
ries, drawn up by the American Congress, and proposed to 
Great Britain by the American Commissioners at Paris. In 
that article '• the north-west angle of Nova Scotia" was 
coupled with the proposal of carrying the boundary line 
along the channel of the River St. John from its source to 
its mouth. In other words, it was then distinctly proposed 
by The United States that '• the north-west angle of Nova 
Scotia" shoiUd be fixed at the source of the River St. John, 
and that a considerable part of their northern boundary lino 
should pas? along the channel of that River. It lias already 



AT 

been shewn to demonstration, that, in rejecting that proposal, 
— for the sake of maintaining which (be it remembered) the 
American Congress had expressed the opinion that it would 
not be worth while to carry on the war, — Great Britain must 
obviously have meant to insist upon a boundary line within 
the line of the St. John ; but, with reference to that proposal, 
coupled as it was with " the north-west angle of Nova Sco- 
tia," it is natural to inquire by what means the line so pro- 
posed was to be reconciled with the line of continuous High- 
lands from the Connecticut River to Chaleurs Bay, along 
which The United States pretend that the northern boundary 
of Nova Scotia as well as their own must now uninterrupt- 
edly pass in virtue of that same expression in the Treaty. 

The truth is, that the words in question are wholly subor- 
dinate to the definition which immediately follows them ; 
and the definition was, in all probability, introduced into the 
Treaty for the express purpose of guarding against any mis- 
construction likely to arise from their being retained in the 
Article, after it had undergone the amendments which were 
described above. If, as the American argument asserts, the 
north-west anale of Nova Scotia was a known and undoubt- 
ed spot, the mere mention of it in the Treaty would have 
been sufficient, in like manner as the mention of the Bay of 
Fundy and the Gulf of St. Lawrence by their respective 
names, without particularizing their limits, suffices to con- 
vey a distinct and adequate idea of those two separate por- 
tions of the sea. But it is not a little remarkable, that the 
north-west angle should have been named without the defi- 
nition, precisely in that Article, which would have fixed it 
in a spot altogether and entirely inconsistent with the line 
now held up by The United States as that which coincides 
with the line of the ancient boundaries and of the Treaty ; 
and that the definition should have been added to the name 
of the angle exactly in that other Article, where the name 
alone is asserted by The United States to have so definite 
and distinct a signification as to exclude the possibility of 
any other construction. 

In this confusion of circumstances one thing may be affirm- 
ed without hesitation ; namely, that the position of the north- 
west angle of Nova Scotia was no more known in 1783, 
than it is known at this moment. The Charter of Massa- 
chusetts, as The United States interpret it, would place that 
angle on the right bank of the St. Lawrence. The Procla- 
mation of 176u, and the Quebec Act, interpreted by them, 
would place it on certain Highlands south of those Rivers- 



AS 

winch fall into the St. Lawrence. The first j>ropos<il of 
their Negotiators at Paris would place it at the source of the 
River St. John. The fact is. that the north-west angle of 
Nova Scotia is yet to ho formed ; and this has been admitted 
by high American autluirity. 

The American argument appears to have confounded the 
assumption in theory of the point designated in the Treaty as 
the north-west angle of Nova-Scotia, with its existence in 
fact, although it is evident that these two ideas arc by no 
means necessarily the same. Even the true position of the 
River St. Croix, from the source of which the north lino 
was to depart. iijKDn which tliis assumed point was to be found, 
was not determined till fifteen years aftr-r the conclusion of 
the Treaty of Peace ; and when the Commissioners appointed 
for that purpose entered njx^n the consideration of the subject, 
they found they had to decide between two rivers, both hav- 
ing claim to the appellation of the St. Croix, and between 
several sources of that one of the two to which the prefer- 
ence was uhimateiy given; and further, that, taking tho 
two extreme claims on the east and on the west, the distance 
between their meridians was no less than 40 miles. 

From the manner in which the north-west angle of Nova 
Scotia is mentioned in the Treaty, and the terms in which 
the north-east angle of Maine is described in the same sen- 
tence, it might have been supposed in 1783, that whenever 
the position of the boundary lino should be ultimately settled, 
there would be a point where the southern boundary of 
Canada would, in lorming the northern boundary both of 
Massachusetts and Nova Scotia, be met by the dividing lino 
between the two latter Provinces — in other words, that 
wherever the north-east angle of Maine should be formed, an 
angle for the adjacent Brili-sh Province mu?!t likewise be de- 
termined. That the finding of the latter was to be conse- 
quent to, and not to govern the position of the former ; that 
it was a point to be sought, and not a point fixed, is admitted 
by an authority which Tho United States will not be inclined 
to dispute ; namely, Mr. Sullivan, formerly agent on tho 
part of The United States, before the Commis.sion for deter- 
mining the true River St. Croix, afterwards Governor of the 
State of Massachusetts, and also the author of a History of the 
District of Maine. 

Mr. Sullivan, in the course of his argument before that 
Commission, expresses himself as follows : — 

" In the Treaty the angle is described in these word?. 

' that Angle xchirh r> formed by a line draw?i due north 



(( 



49 

^' -from the source of the River St. Croix to the Highlands} 
" An angle is the point of intersection on the mutual inclina- 
" tion of two lines, and therefore to give a second line the 
" Treaty adds ; ' along the said Highlands which divide 
" ' those rivers that empty themselves into the River St. 
" ' Lawrencefrom those ivJiich fall into the Atlantic Ocean ;^ 
" but still a course to exhibit the inclination of this second 
'' line was necessary, and it was therefore added, ' to the 
'•' 'north-westernmost head of Connecticut River. ^ Then 
*' the Treaty contemplates a line running on the Highlands 
" so as to divide the rivers which run into the St. Lawrence 
" from those which fall into the Atlantic Ocean, but whether 
'• this is to be a direct or crooked line is not ascertained in 
" the Treaty. If it divide those rivers as above expressed 
" there can be no pretence of its being a straight line. It is 
'' either in its geiieral inclination or in its direct course to 
"' run to the north-westernmost head of Connecticut River. 
" There can be no angle existing, as known to any man, 
'' until those lines are formed, for the point of their incli- 
'• nation is but a tnathematical deduction frowo a perfect 
recognition of the lines themselves. It was found at a very 
•' early period that the rivers flovv^ed from the southward into 
" the River St. Lawrence, and from the northward into the 
'•' Atlantic Ocean. This raised a reasonable conjecture that 
'' thci^e was a ridge of Highlands which divided those rivers 
'' from each other ; but the savage state of the Country, the 
'' continued wars of the Nations, and of the Indians, and the 
*' immense labour of traversing such a>n extensive wilderness, 
'' raised obstacles too great to be overcome by the prospect 
" of any advantages which could possibly be the result. 
'" Indeed we are as entire strangers to these Highlands^ 
■• and the sources of the I'ivers on either side of them, as 2ce 
'' arc to the sources of the Nile. In the Grant of King James 
" to Sir William Alexander, tlie Highlands do not appear to 
'" be mentioned ; the words are, ' undc per imaginariam 
" ^ directani lineam, quce pergere j)^^' terrani seu currere 
'' 'versus Sepientrionem concipietur, ad proximam naviunh 
" • stationem, fluvium vel scaturiginem in magno fiuvio de 
''' ' Canada sese exonerantevi.^ The Highlands are liere 
" made no part of the boundary, but the line, as an imagi- 
'•' 7iary line, was to be drawn towards the north or northerly 
" to the source or spring of a river which emptied its waters 
" into the River Canada. The last mentioned River then 
'* is described as the boundary on the north-east of the 
" Patent. 



*• The line of the Treaty is a hue due north, in its fourse, 
" and in its extent, reaching from the sourco of the St. Croix 
•' to the highlands ; the hnc in Sir William Alexander s 
" patent is an indefinite uncertain line, which is to leave, 
" not the source, but the most western spring of the St. 
" Croix, and wander to the unexplored spring or sourco of a 
" river, which empties its waters into the St. La\\Tence. and 
*' of the existence of which source or spring there was no 
** evidence or knowledge, but what was conjectured from 
•* the existence of rivers, the mouths of which only had been 
" seen. From the year 1621 there was no act of Govern- 
" mcnt. no exercise of jurisdiction, or claim of property 
" from whicii this line could receive a station, but all wa.s 
" abandoned and lost in Treaties, cessions, conquests, recon- 
" quests, by and from the French crown, from Oliver Crom- 
" well, and from the Kings of England. 

" The country of Canada M-as conquered in 1700 : on tin- 
" 7th October, 1703, the King of England issued His Roy^I 
" Proclamation for improving and regulating the islands and 
" country which had been ceded by the late Treaty of Peace. 
" In this Proclamation we find this provision ; fir«t. * Tho 
" ' Government of (iuebec bounded on the Labrador coast 
" * by the River St. John, and thence by a line drawn from 
" ' the head of that river through the Lake St. John to thr 
" 'south end of the Lake Nepissim. from whence the .said 
"'line crossing the River St. Lawrence, and the Lakr 
" * Champlain in forty-five degrees of north latitude, passe.s 
" * along the highlands, which divide the rivers that empty 
" ' themselves into the River St. Lawrence, from those wliicl! 
" * fall into the sea.' 

" There is no surh anisic drscribed in tlio Prorhnnation 
" or in the Art of Parliament as is mentioned in the Treaty 
" of 1783. The line by the Proclamation is to cross the 
" St. Lawrence in the 45th degree of north latitude, wliicli 
" is on a degree nearly equal with the mouth of the Scoudit- 
" and Magagnadavic Rivers, and very far south of the angle 
" now sought for, and far below every part of the highlands 
" referred to. No course or courses are given to the line 
" which is drawn on the highlands, but all is left to imagi- 
•' nation. This line coidd have no influence on the minds 
" of the Commissioners in 17S3. 

" In the Treaty of that date it is provided, that the line 
" between the two nations shall run on the highlands to the 
" north-westernmost head of Connecticut River, and then 
" down the middle of that river to the 4oth decree of north 



51 

" latitude : whereas the hne of the Proclamation was in the; 
" 45th degree at the St. Lawrence, and so to run on the 
'' highlands to Lake Champlain, without saying at what 
'• point it should cross the Connecticut. 

'' Thus we find no place for this angle prior to the Treaty 
" of 1783, and are now left to form it by running' the linen 
" in (hat Treaty agreed upon. 

" That in order to determine that place as nearly as could 
'' be done, it was agreed that a certain river, which had 
'•' heretofore been known and called by the name of the 
" River St. Croix, aiid which had been deemed and received 
" as the eastern boundary of the Province of Massachusetts 
'' Bay, should be taken as a part of the boimdary. and that 
" to fix a line from the source of that river to the highlands 
•'' both as a line for the Government of Massachusetts and 
" Nova Scotia, it should run due north, and that the limita- 
" Hon of that line should be in what should ultimately be 
'^ found, when the country should be explored, to be thehigh- 
'' lands. 

" This is not a singular instance in that Treaty of leaving 
" that as uncertain which might afterwards be ascertained : 
" the important boundary of the north-westernmost head of 
" Connecticut River is unknown and unexplored. There 
" are several other instances very similar to this which ap- 
•• pear on reading the second article of the Treaty of Peace. 

" We have come then clearly to this point, that the north- 
*' west angle of Nova Scotia is to be found by running a line 
" due north from the source of the St. Croix River to tlie 
" highlands to a point or a place, where that line shall intcr- 
" sect a line along the highlands, ivhich divide the rivers as 
" before mentioned, and run to the north-iv ester nmost head 
'' of Connecticut River. * * * * 

# *# ***** 

" The Highlands had, in the year 1763, been made the 
'■' boundary of Quebec, or the Lower Canada boundary, but 
" where the boundaries or highlatids are, is yet resting on 

" the wing of imagination. 

# * "^ * * * * 

" We are as entire strangers to the Highlands, and the 
" sources of the Rivers on either side of them, as we are to 
*' the sources of the Nile. There can be no doubt that the 
" noj'th west angle of Nova Scotia is yet to be formed, and 
" that this is to be done by forming the north-east angle of the 
" State of Massachusetts. To do this it has become neces- 
" sary to fmd the River wliich was truly meant and intended 

u 



5-2 

'* by the Commissioners who doscriLeii tht; bouiuls, lo (md 
'*■ the source ol" thai river, and to draw a line due north from 
'• ihence. 

• But even this cannot decide where the nortliwcst angle 
" is, because this board has no authority to fix tlie lino, which 
'• is to be intersected in order to form the angle, or llie point 
'• of mclinalion of the two. The questum resulting from the 
•' Treaty in regard to the line ujx>n the Highlands is reserved 
'• to a future period. This board has no concern in it as to 
" its principles or consequences, and the point of thr loralily 
" of the norlh-iccst an^le is to be the invesligatiov of the 
" next rrntury.'' 

The framers of tho Treaty wanted a point of departure 
for the northern boundary line of The United States ; and 
they apjxiar to have thought that the supp*)sed |)oitit of con- 
tact of the three provinces filhng to the south of the St. 
John, would, when named in the treaty, sulRciently answer 
that purposn. The northern boundary line, being intended 
to limit the territory of The United States on that side, was 
to be carried westward from the f)oint «»f departure thus de- 
signated, which was necessarily external to the territory of 
The United States, then first to be acknowledged indepen- 
dent. The north-eastern angle of that territory it was 
strictly within the scope and com|)etency of the Treaty, as it 
was also one of its particular objects, to describe. To des- 
cribe the north-western angle, or niiy other angle, of Nova 
Scotia, was not within the Province of the Treaty ; and it 
has already been shewn that no such angle existed, except 
in theory, ))rior to the conclusi()n of that instrument. When 
therefore. The United States object to Mars Hill that it is 
not, as they atfirm, connected with a chain of Highlands ex- 
tending to Chaleurs Bay, they exact a condition not only 
foreign to the declared and legitimate puri)Ose of the Treaty, 
but also to the real question to be dccidfrd. 

Such being the case, there would be little interest in ex- 
amining the nature of the country east and north-east of 
Mars liill. It is enough to know that Mars Hill is calcula- 
ted to imi»art a character of decidedly suix-rior elevation to 
that part of the country in which it is situated, that the due 
north line crosses its eastern sloi»e, and that there are appear- 
ances of a generally hilly and mountainous tract, marked 
with occasional eminences of a loftier kind, going olf from it 
in a westerly or south-westerly direction, and allowing the 
boundary line lo be carried along this uneven succession of 
bii^hlajids in sucli a manner as to Icuve the waters of tUe 



53 

Atlantic Rivers entirely within The United States' ter- 
ritory. 

According to the American argument the only spot on 
the due north line, capable of answering to the terms of the 
Treaty so see to constitute the point of departure required for 
the Northern Boundary Line, is fixed at a point about 144 
miles from, the source of the River St Croix. The line so 
prolonged intersects the main channel of the St. John and 
several of its tributary streams, besides intersecting also se- 
veral other streams whose confluence form the River Resti- 
gouche ; and it terminates at a place destitute of any mark- 
ed elevation, between one of the branches of the Restigouche 
and the sources of a stream falling into the River St. Law- 
rence, and presumed to be the River Metis. 

According to the same argument the Northern Boundary 
of The United States is carried from the point thus fixed to 
the north-westernmost head of Connecticut River, passing 
all along between the Rivers that empty them.selves into 
the River St. Lawrence and the tributary streams of the 
River Restigouche, of the River Si. John, and of Rivers 
Avhich fall into the Atlantic Ocean. 

The highlands, which the American argument describes 
as passing, without interruption, from the point proposed by 
The United States as the true north-west angle of Nova 
Scotia to the north-westernmost head of Connecticut River, 
are wholly destitute of any marked or conspicuous elevation 
through, by far, the greater part of their extent. 

The United States, pursuing their idea of identifying the 
line designated in the Treaty with that which they suppose 
to have existed previously am.ong the British Provinces, have 
objected to the adoption of Mars Hill, as the point of depar- 
ture for the northern boundary line, that it is not in imme- 
diate connection with any chain of highlands trending east- 
ward in the direction of Chaleurs Bay. The reasons which 
lead to treating this objection as irrelevant have been stated 
above, and it is not thought necessary to go into the exami- 
nation of a fact, which, if it v/ere even estabUshcd on indis- 
putable authority, would be entitled to no weight in the 
decision of the point at issue. But since The United States 
appear to think tliat the continuation of the highlands east- 
ward of the due north line is so essential to a fulfilment 0} 
the terms of the Treaty, there may be some interest in as- 
certaining how far the line which they themselves claim, 
is calculated to fulfil this condition. The line which they 
claim is. in fact, no other than the boundarv line which they 



5\ 

5\ipj)osc to iiavc cxistctl as l-ctweori Cunadnaml ?Sova Scotia 
III virtue cl' the Royal Pn tlaiiiatinn of 1703. But that line, 
it is well known, cannot continue along the highlands ac- 
cording to the condition on which The United States insist. 
It must leave those highlands, in order to pass along the 
north coa.st of the Bay dc Chaleurs. In this manner it is 
evident that whatever may be the character of the country 
in a direct line between Slars Hill and Chaleurs Bay, the 
line claimed by the United States is defective in that very 
quality to wlucli they attacli so creat a degree of importance. 

It lias already been sliewn and lully established that the 
River Hestii^oucht and the River St. John are not classed 
by the Treaty among the Rivers falling into the Atlantic 
Ocean, and consequently that Tlie United States, who main- 
tain that tlu- Highlands designated by the Treaty must be 
those which imincdiutcly divide the St. Lawrence Rivers 
from those of the Atlantic Ocean have failed to substantiate 
their claim in that res|>ect. The consecjuences involved in 
the admission of th.'»t claim, as well with regard to the gene- 
ral principle and purview of the Treaty, as relatively to many 
un})ortant interests of the British Colonics, which would be 
thereby prejudiced, without the extension of any correspond- 
ing benefit to The United States, are such as to call for the 
clearest proofs and the most irresistible demonstration. But 
far from this being the case in the present instance, it is 
manifest, that in order to produce even an appearance of 
consistency between the American Claim and the letter of 
the Treaty, one of the principal limitations of that Treaty 
must bo wlioUy set aside, and even its very terms submitted 
to a forced and unnatural c<-)nstruction. directly o]>posed to 
the sense which is incontn^vertibly attached to them in other 
parts of the same Article. 

That the Bay of Fundy and the Atlantic Ocean arc con- 
tradistincuished from each other and confounded together 
ill one and the same Article of the Treaty ; that the lliver 
St. John which empties itself into the Bay of Fundy, and 
the River Restigouche which empties itself into the Bay of 
Chaleurs and through it communicates with the Gulf of St. 
T..awrcnce. fall into the Atlantic Ocean in the sense and mean- 
ing of the Treaty ; that the word " Highlands" is wholly 
unconnected with the idea of height otherwise than as it re- 
presents the separation of rivers; that the. British Plenipo- 
tentiary, at'ter declining the ofTf-r of the St. John as a Boun- 
dary, consented to give up half of that River together with 
a lnrer> territorv nortli as v.-ell as south of it to The United 



5 



K 



States; that the principle, declared in the Treaty, of secu- 
ring perpetual harmony and beneficial intercourse between 
the two parties, would receive its intended application by 
dividing the principal rivers of the Highland Country in 
such manner as tolay the seeds of " future discord" between 
the Parties ; are among the propositions in virtue of v/hich 
the claim of The United States can alone be made good in 
opposition to that of Great Britain. 

The United States, in supporting that claim, have labour- 
ed to establish not only that the Boundary Line designated 
in tho Treaty is identical with that which subsisted between 
tha British Provinces of Nova Scotia, duebec and Massa- 
chusetts, previous to the War of Independence ; but further, 
that the Line, which they now propose, is identical with the 
one and with the other of these two Lines. It has already 
been proved in treating of that point which The United 
States have claimed as the true north-west angle of Nova 
Scotia, that any such identity between their line, and the 
supposed line of the ancient provincial boundaries, is mere 
matter of conjecture. In going into this question of the an- 
cient Boundaries, The United States have not been able to 
conceal the inconvenience, and indssd the insurmountable 
objections attached to such a disoussion at the distance of 
forty-six years from the conclusion of the Treaty. It was, in 
truth, so clearly the intention of the Treaty to settle the 
Boundaries both peremptorily and definitely, that the argu- 
ment advanced by The United States with reference to 
what those Boundaries were, as between the several British 
Colonies before the War of Independence, must be consider- 
ed as tending, however undesignedly, to counteract that wise 
and salutary intention. The treaty itself, as amply shewn 
before, is silent on this subject. It introduces the definition 
of the Boundaries by stating it to be " agreed and declared" 
that they "are and shall 6e" as follows. Such are not the 
words which parties meaning to confirm ancient boundaries 
would have chosen. If the framers of the Treaty had in- 
tended to adopt any line of demarcation supposed previously 
to exist, they might have satisfied themselves with running 
a line due north from the St. Croix River to the Southern 
Boundary of the Province of Q.uebec ; but they were re- 
solved not to trust to any such vague and arbitrary line of 
Frontier, but to establish peremptorily a new line, which, 
whether it might or might not coincide with any supposed 
former line, should, in accordance with the principle laid 
down in the beginning of the second article of the Treaty, 



56 

prevent all disputes m future on the subject of tUe Boundtt- 
nes of The United States. 

In maintaining the fact of the silence of the Treaty as to 
ancient Boundaries, and considering that question as foreclo- 
sed by the authoritative decision contained in its Second Ar- 
ticle, tlierc is no intention of asserting on the part of Great 
Britain that no reference whatever was made to the ancient 
Boundaries in the course of the negotiations which termina- 
ted in the Peace of 17S3. There is no diiliculty in admit- 
ting that the American pro^x^sal. as to Boundaries, which 
was subsequently transferred with several imi)ortant uUera- 
tions to the Treaty, derived the greater ptirtion of its terms 
from the Royal Proclamation of 1703. The correspondence of 
the American Commissioners further shews that, at least, on 
their part, the Ciiarter of Massachusetts was brought forward 
at some period of the negotiation in sup[)ort of their preten- 
sions. It docs not indeed accord with the situation of the 
parties, at that time to suppose that The United States could 
ever have ihomzht seriously of insisting on the acknowledg- 
ment, by Groat Britain, of a wider extent of territory than 
thny were understood to have {Assessed, in virtue of some 
principle or other, as British Colonies. 

But these admisions are perfectly consistent with what 
has been already asserted on clear specific evidence, namely, 
that the two j)arties, in proceeding to a final adjustment of 
their claims, did not agree to decide those claims, on any 
fixed principle of right, but ultimately determined to adjust 
them i)y a peremptory declaration founded on mutual consent 
and mutual convenience, and the interest, common to both, 
of preventing future disputes and collision. 

A brief review of the principal documents which relate to 
the ancient boundaries in this quarter, will indeed be suf- 
ficient to shew that the negotiations might have been pro- 
tracted to an indefinite period, if those who conducted them 
had not taken the determination of adjusting their differ- 
ences on the only priTicii)le adapted to their real interests, 
and to the new position in which the parties were placed 
towards each other. 

Sir William Alexander's Grant, which was not in tlio 
recollection of either Mr. Adams or Mr. Jay when they were 
examined on oath as witnesses under the St. Croix Commis- 
sion, and which in former discussions respecting boundary 
under the Treaty of i7S3, The United States' Agents liavn 
vehemently rejected, carries the western Boundary of Nova 
Scotia un to the westernmost source of St. Croix River. 



and thence to the River St. Lawrence by a hne extending 
towards the north, and joining the nearest spring or head 
stream emptying into that River. According to the same 
Grant, the northern boundary of Nova Scotia was to pass 
along the southern coast of the River St. Lawrence to Cape 
Rosicrs. 

The terms of the Grant would not bear us out in suppo- 
sing that the western Boundary of Nova Scotia was to be 
formed by a due north hne. The only positive circum- 
stances to be collected from them as guides for our opinion 
are, that the Line between the two sources specified therein 
shall be a straight one ; and that the source communicating 
with the,St. Lawrence shall be the nearest. On looking to 
the map we instantly perceive that these guides might lead 
us to head VvMters of the River Chaudiere as being the near- 
est to the point of departure of ail the sources north of it 
falling into the St. Lawrence. But, without presuming to 
intimate that such was the real intention of the Grant, dating, 
as it does, from a period when the face of the country was 
wholly unknown, we feel ourselves justified in pointing out 
the vagueness of its terms, and inferring how extremely dif- 
ficult, or rather impossible, it would have been for the Nego- 
tiators of the Treaty to have fixed the Boundaries between 
two Independent States, in conformity with definitions so 
loosely worded as to involve the most unexpected contingen- 
cies. 

A line extending from the source of the St. Croix " towards 
the north" to the riearesf part of the St. Lawrence would, 
at all events, strike that river, owing to the obliquity of its 
source, far to the west of that point where a due 7iorth line 
would intersect it. A reference to the map will make this 
clear. It must not be forgotten that the Commissioners 
\mder the 5th Article of the Treaty of 1794, in deciding 
v/hich was the true St. Croix, adopted the northern stream, 
to the exclusion of the ivestern. Thus the variations of this 
one Grant alone offer four several north-west angles of Nova 
Scotia. The western stream being the one named in Sir 
William Alexander's Grant, the preference of the northern 
stream must surely invalidate the authority of the Grant as 
a binding' designation of the boimdary of Nova Scotia ; and 
at any period subsequent to the Proclamation of 1763, Sir 
William Alexander's Grant is altogether irrelevant as to the 
northern boundary of that Province. 

The Charter of Massachusetts, dated in 1691, does not 
mention the territory of Sagadahock, which according to 



53 

tlie Duke of York's Grant extended by its eastern and west- 
ern limits to the River St. Lawrence. It annexes to the 
Province of Massachusetts only '' those lands and heredita- 
" ments lyinc and extending between the said country or 
'* territory of Nova Scotia and the said river Sas^adahork." 
Agreeably to these words, the northern limit of Sagadahock, 
as annexed to Massachusetts, wonld be a line drawn obliquely 
from the source of the Sagadahock or Kennebec River to the 
point of intersection between the western boundary of Nova 
Scotia and the south bank of the River St. Lawrence. 
Besides the considerations arising out of this circumstance, 
it is to be remembered that the right of ISlassachu setts to 
retain any part of Sagadahock, at least that part of it 
which lies cast of the Penobscot River, has been contimially 
questioned and denied by the British Government. 

The Royal Proclamation of 1763, of which the Art of 
Parliament called tho Quebec Act is a mere paraphrase as to 
that part of the boundary still in dispute, extended tho limits 
of Canada considerably to the south of the St. Lawrence. 
According to that Proclamation, the northern boundary of 
Nova Scotia, reeulatcd by the southern boundary of Canada, 
would agree with the following description : " the line cross- 
" ing the River St. Lawrence and the Lake Chamjilain in 
" 45® North Latitiide passes along the highlands which 
" divide the rivers that empty themselves into the said River 
" St. Lawrence from thos<: which fall into the Sea, a7id also 
" along tho north coast of the Bay des Chalcurs." To the 
line thus described the American argument has attributed 
a degree of precision and ijnbroken continuity, which_ its 
application to the known circumstances of the country decs 
not warrant. \ line, of which tho conditions are that it pass 
along the highlands, as traced by The United States on the 
principle of a supposed identity between the line now claimed 
by tlicm and the imcient boundary line of the Provinces, and 
also that it pa,«!s along the north coast of the Bay des Chaleurs, 
cannot possibly be continuous "from its beginning to its 
"termination." The American line prolonged in an east- 
erly direction would extend to Cape Rosiers, leaving an in- 
terval of more than half a degree between its ov/n course and 
the north coast of Chaleurs Bay ; and supposing the line to 
bo carried along the coast of Chaleurs Bay, agreeably to the 
terms of the Proclamation, a considerable part of it must 
necessarily pass, before it reaches that bay, not between 
rivers falling on one side into tho St. Lawrence and on th«; 
other into the Sea. but between the streams which lull into 



59 

the Bay of Chaleiirs only, and in a direction nearly at right 
angles with the direction of tlie line prolonged to Cape Ro- 
siers. The truth is that the lijie described in the Proclama- 
tion was never put to tJie test of a practical application ; nor 
did the circumstances of the country require that it should 
receive a more fixed and positive character throughout that 
central portion which intervenes from the Bay des Chaleurs 
to the dividing highlands situated immediately between the 
sources of the Kennebec and Chaudiere Rivers. On the 
Bay des Chaleurs there were settlements connected with the 
fisheries ; at the other extremity of the line settlements were 
also to be found ; and it was therefore desirable to provide for 
an actual delimitation relative to the rights of provincial 
jurisdiction in both those parts of the country. But the in- 
termediate space was a wilderness destitute of all inhabitants 
except the Indians ; and the British Government had there- 
fore no adequate motive for regulating the boundaries of pro- 
vincial authority throughout a region so little known at that 
time, and of which the interests were not as yet even par- 
tially developed. 

Moreover, The United States cannot, with any pretence 
of right or reason, appeal either to the Proclamation or to the 
Quebec Act. The American Congress, when engaged in 
weighing the conditions of Peace, reprobated both the one 
and the other, as acts of oppression trenching on their rights, 
and to be reckoned amongst the causes of their Revolution. 

Such are the vague and conflicting documents, by means 
of which The United States have endeavoured to establish 
th ^ ir two-fold proposition which forms the basis of their 
whole argument, namely, that the boundary defined in the 
Treaty, was intended by the negotiators to be identical with 
that which they conjecture to have existed previously as be- 
tween the British Provinces, and that the line now claimed 
by them, is identical with those two lines. In other words 
they have attempted an impossibility by means of a discus- 
sion which they acknowledge to have been definitely closed 
by the Treaty of 1783, and of which the records of the nego- 
tiation and the Treaty itself ofl'er no traces to warrant their 
conclusion, that the confirmation of a pre-existing boundary 
line was the object and intention of the Article respecting 
boundaries. The attempt to establish this proposition is 
termed an impossibility, because it has been proved in the 
course of this inquiry, that no such line did, in fact, exist 
before the Treaty of 1783, in the sense presumed by their 
argument ; that the identical line now claimed by tliem 
could not possibly coincide with that line,, if it had really 

I 



GO 

existed, and that the documents, which they have produced in 
supiwrl of their pretensions, lure unfit, either singly or collec- 
tively, to furnish the basis necessary for its establishment. 

There are two |)oints which still remain to be noticed. 

It has been alleged on the juirl of The United States, that 
all mai)s, comprehendinti the disputed territory, which ^are 
known to have been published between the peiiods of 176'.i 
and 1783, and of which copies are now to be procured, con- 
cur in carrying the boundary line, as described in the Royal 
Proclamation, along those highlands to which the claim of 
The United States i)articularly applies. In answer to the 
inference, which The United States have drawn from tliis 
sui)posed coincidence, it is to be observed : 

1*^. That in the maps referred to, the highlands in (juos- 
tion arc represented by a line of visible elevation contrary to 
ihe true character of the country, as since ascertained. 

2*^. That in some of these maps the line of visible eleva- 
tion, so represented, is made to intersect the waters, either 
t.f the St. John, or of the St. Lawrence, and in some, even 
of both, disproving thereby any intention of its having been 
traced ui^n the principle of separating those waters. 

3*^. That, notwithstanding some differences of little con- 
sequence, when taken with reference to general jiurjioses, 
these maps are so evidently copied, tlie one from the other, 
that no additional evidence can be safely derived from their 
coincidence. 

4^. That the selection, on the part of the negotiators, of 
Mitcheirs map, which was published before tlie Proclama- 
tion of 1763, in preference to those maps which pretend to 
give the line described in the Proclamation, contributes rna- 
Terially to show, that the line in question was not that on 
which the boundary, as defined in the Treaty, was meant 
to be established. 

The point remaining to be noticed is the state of actual 
possession and jurisdiction in the disputed Territory, and on 
this point a series of important facts and documents will be 

presented. 

There is on the public records at Quebec, a Grant or con- 
cession from the French Government of Canada, to a French 
subject, of a territory called The Fief of Madawaska, dated 
on the 25th of November, 16S3, eight years prior to the date 
of the Massachusetts Charter, which forms the basis of the 
American claim. This Fief of Madawaska includes the 
whole o{ the Tcmisquata Lake and nine miles further in 
length down the Madawaska River, extending in depth six 
miles fur the whole distance, as well around the Lake as on 



61 

each side of the River. There are also on record at Quebec. 
deeds, judicial proceedings, and acts of feudal service, by 
Avhich the title to this Territory is regularly deduced from 
the original grantee downwai-ds to the present time ; and 
possession and actual occupation of this extensive Fief con- 
tinue to be held to this day under the original grant, and 
under the jurisdiction of Lower Canada* 

In the auebec Gazette of the 24th January, 1765, there is 
a notice issued from the office of the Provincial Secretary 
of that Province, by which all Canadian inhabitants are 
prohibited from interfering with the hunting grounds of the 
Indians, '' down to the Great Falls of the River St. John.'' 
This is an act of clear jurisdiction by the Government of 
duebec down to the place mentioned in the notice, viz : 
the Great Falls of the River St. John ; and such a jurisdic- 
tion could not have been exercised had not the place have 
been deemed to be within the limits of the Province of Que- 
bec, according to the bounds described in the th^n recent 
Proclamation of 1763. 

In the month of November, 1784, Charles Nichau Noiste, 
a native Indian, was tried and convicted in the Court of 
King's Bench at Quebec, for the murder of one Archibald 
M'Neil, at Madawaska. The place where the offence was 
committed is thus described in the Indictment, " near unto 
" the village of Madawaska, in the district of Quebec, in 
'' the Province of Quebec." — In the Quebec Gazette of the 
11th of November, 1784, there is an account of the execu- 
tion of this Indian for this murder ; and the case is rendered 

* The following is a list of documents en record either in the Government 
Offices or ofBces of Notaries Public at Quebec, all of them including The Fiev 
oi" Madawaska : — 

1. Confession of the Fief of Madaivaska lo the children of the Sieur de la Chenage, 25th 
November, 1G83. 

2. Adjudieation of tlie Fiefs of Riviere du Loup and Madawaska to Joseph Blondeau dit 
la Trancliise. '29th Oct. 1709. 

3. Act of Foi et Homage hy 5n%e\>\\ Blondeau dit la Fraochise for l\\e Fiefs of Riviere du 
Loup and Madaicaxka, 13th February, 17J3. 

4. Aveii et deiioinfn-ement hy Joseph Elondean dit la Franchise, 15th Feb. 17-23. 

5. Adjudication of the Fiefs of Riviere du Loup and Madawaska to Pierre Claverie, 29th 
July, 175.''}. 

6. Act of Foi et Homage by Pierre Claverie for the Fiefs of Riviere du Loup and Mada- 
waska, mth March, I75fi. 

7. Receipt for the domains and dues for the Fiefs of Riviere du Loup and Madawaska, 8th 
HI ay. 17,")n. 

8. Deed of Sale, J. A.N. Dandnune Danseville and his wife (the widow of Pierre Claverie) 
to James Marray, 20th July, 17ri3. 

9. Deed of Assignment dated 2d Aupu'st, 1768, by Richard Murray to Malcolm Fraser 
of an Indenture of lease made by James Murray to the said Richard Murray and Malcolm 

Fraser And an Indenture of Lease by the said James Murray to Henry Caldwell, dated 

7th April, 1774. 

10. Lease frora Henry Caldwell to Malcolm Fraser, C4th September, 179'2. 

U. Corfirmation before a Notary, 27th December, 178C, of Lease from Henry Caldwell tc 
Malcolm Fraser, 24th September, 1782. 

)2. Deed of Sale from the Trustees and Executors of Jamca Murray, to Henry Caldwell, 
Jlst June, IPO'i. 

13. Deed of Sale hy Henry Caldwell, to Alexander Fraser, 2d August, ISW. 



02 

rrmarkabU; by a comniiitation of the mode of exccutiu;^ tho 
ienteiice of dcatli, ordcrcii by the Ciovernor, under llie advice 
of Council, as appears by the following extract from tin* 
niuiutes of the Kxecutiv»; (.'ouncil : — 

" On Wodnr»<1iiT tho 3d Norerober, 1784, at the Couocil Chamber, iu Ibe 
" Caille of St. Lflwis. 

rHFSKNT : 

" IWt Kxcellencf Fhrokruk Hai.dimand. Covernor. 

" The Hon. IIcnbv (Iamii.TON, Lieutenant Ciovernor. 
" Hoph KinUr. A'lam Mabanc. 

•' Thoroat I'onn. lieorge I'ownall. 

•• Krsncni* l.orrtqiie, J. G. C. De l^ery, 

" Kdward llnrrikoo, ftenrjr Oldwall. 

" John Colliot, K{ftnri» IJaby, K»quircs. 

'■ His Excellency, tin- iiovcni. r. laid before tlie (,'omicil 
■ a sentence pronou7ircd this day (i^ditist an Iiidiati nauu:d 
" Charles \ichau Noistc, indicted for murder, condemnint,' 
'• the said Charles Nichau Nojste to be hanged by the neck 
" until he be dead ; and stated that application had been 
'• made to his Excellency by the friends and relations of the 
'• culprit, the Indians of his nation, and the Indians of other 
" nations, to change the punishment pronounced by the law, 
" into that of shooting, whicliis more consonant to the ideas 
'• of savages, and haring requested the advice of the Council, 
'* how far His Excellency ought to extend mercy in the 
'• change of punishment so earnestly prayed for ; — The Coun- 
" cil, having weighed the matter, and the consequences that 
" might ensue, were of opinion unanimously, that the })a- 
'' nishmenl should bo changed, and that the said Charles 
•• Nichau Noislc should be shot, in place of being lianged, as 
" is directed by this sentence." 



The Province of Quebec conlnnied to claim, and in some 
instances to exercise jurisdiction down to the (ireat Falls of 
the River vSaint John, until the year 1792, as will appear 
from the following documents: — 

1. Proccc(lin{;s in the Court of Common Picas at Quebec. 

" Province du Bai Canada, \ 
" District de Quebec . J 

"COUR DES PLAIU0YER3 COMMLNS. 
" Terme de Spptembrc, 

" Lundi, 14 Septembre, 1789. 
« Prcenl, Adam Mabanf.. J ^ . 

" .Imelmc if Mirhael Rohidtaiuc, T 

V. 

" Augftttln DiiV !; Plerri Dupere, 

" Le Sheriff fait »on retour du tervice de la •omtnation, Mt""'' Panel paroii 
" pour les deni;»ndeiir», et a file trois Licencei et une Lettre ritce d«n§ «a d<«- 
" claralion, Mfe. Cujjnct, comparoit pour les dcfeudeur#, la (Jour ordonne, 



'•I 



63 

" que le DefeD(5eur pretidr.i comnmnication des pieces files par le Jemandeur 
" et fouruira ses defenses sous trois jouis. 

"17 Septembrc, 1789. 
" M'^''^- Cugnet, pour les defendeurs a file ses defenses, la Cour ordonne, 
" que le demandeur en prendra communication et fournira ses repliques sous 

" trois jours. 

" 28 Septembre, n89. 

" M't'P- Panet pour les demandeurs a file ses repliques, la Cour ordonne 
" que le defeudeur eu prendra communication. 

'■30 Septembre, 1789. 

" La Cour du consentement dps parties a mis en delibeie. 

" La Cour, en proccdent an deliberS de cette. cause, aijant rcmarquS, que les 
" defendeurs ont allegue dans leurs ecrit de dilfcnscs, qu'il ne sont pas de la juris- 
" diction de cette Cour, mais domiciliers de la Province de Brunswick, aiiqnel 
" (dlegne les demandeurs n'ont pas repondu dans leurs ecrit de repliques, ordonne, 
" que les demandeurs declareront et J'cronl inscrire sur le regisire de cette Cour, 
" s'ils udmeltent I'alleijite des defejideurs ou non. 

"9 Janvier, 1790. 

" M'""^- Panet, Avocat des demandeurs. a declare, en conformitc du jugement 
" de cette Cour du quaire Janvier der. qu'ils soutiennent, que les defendeurs ont 
" etc assignes dans la Province de Quebec, et que I'assignution est sujjisante de 
" laquelle declaration cette Cour a dunite acte, ct ajix6 a Lundi pour entendre la 

" cause. 

" 11 Janvier, 1790. 

" Apres avoir entendu les parties, la Cour ordonne qn'ellesferont preuve res- 
" peciive Vendredi prochain, si Madouaska et le Grand Sault sont dans la Pro- 
" vince de Quebec ou non. 

"U Janvier, 1790. 

" Sur la motion de ]Mt''f- Panet la Cour ordonne, que les preuves seront 
" peremptoirement entendues et revues Vendredi prochain. 

" 18 Janvier, 1790. 

" JMtre- Panet a dit, qu'il n'a d'autre prcuve a produire en cnnformite du Juge- 
" ment du onze de ce 7nois, que les licences des demandeurs fil'ces, et la regie da 
" 14 Septembre, pour fournir les dtj'enses, Mtre. Cvgnet demande jusqu'au terms 
^'prochain pour faire preuve, de son allequc en ses defenses: la Cour parties 
" ouies raets en delibere. 

"22 Mars, 1790. 

" La Cour nyant considicrc les Plaidoycrs des parlies, et apres en avoir 
" delibere, est d' opinion que les difcndeurs ne se sont pas covformes a P article 
" onzienie des regies de cette Cour, ayant du lors dujour de relour des som- 
" malions file leur exceptions, soit peremploires, delatoires ou dccUnatoires , 
" que le memejour, auquel Air. Cugnet, leurs Avocat filat sa comparation il 
" fut ordonne, qiiilfourniroit ses defenses et non un ecrit intitule mat a propos, 
" defenses, qui cepcndant est une exception declinatoire, que les defendeurs 
" Ti ayant aucunement prouvc ainsi quil lui etoit permis, de le fair par le 
"jugement inlerloeuloire de cette Cour, que les assignations a eux donnecs 
" ont He signifiees liors de la jurisdiction de cette dite Cour, Us ent sontjorclos 
" d'aprcs ces considerations, la Cour deboutc les defendeurs de leurs exception 
" declinatoire qiiils ont qualificc difenses avec depens occasiones par la dite 
•' exception, et ordonne qu'ils fourniront leurs defenses uu merile de la cause 
" sous trois jours." 

2. Extract from the Quebec Gazette, of 10th November, 
1791, of a Sheriff's Notice of the Sale of Lands of Pierre 
Diipere, at Madawaska, at the suit of Ansclmc and 
Michel Robichaud. 

'• District of Quebec, 

" I3y virtue of a Writ of Execution issued out of His Majesty's Court of 
" Common Pleas for the said Dislrict, at the suit of Anselaie and Michel 



64 

•' RobicliauJ, m^rchanU, rciidinp at Piiiirf ties Cu/>irf. Bgnin»l die morpaMn 
" •nd itnrroTe«bIe properly of Autiuttin J)uht\ htrtlofore of Mtiiiouatk*, now 
" of I«le \'crle, and I'lcrre Dtiper^, mrrckant at Aladoumka, to me ilirectod, 
" I hnre teixed and tikkcn in exrculion — 

" I. A piece of land of l«ro arpent* nnd Iwo prrrlie* in front, liy forty-two 
" arpentt in depth, tituate in the I'arith of Si, Jutin, in tlia Seigniory of I>le 
•' \'erle, bounded in front by the Rirer St. l^iiwrence. and behind by the lindi 
" of ibe »aid Sci)fniory, joining; on the touth-west i^iJe to Mr. Lccour the I'llol, 
" and on the nnrth-eait tide to llie hcirt of Hiouz, the «arao belonging to ihu 
" *aid Aui;u«liDe I)ubt*, one of the defendant*. 

"II. A pitcf nf land belongiag to the taid Tierro Duperc, the other defend- 
" ant, containing %\x arpcnti in front on the Ilivfr St. John, at Madouaska, by 
" a league in depth, ending at tiie ungranled land*, jnining on (he north-catl 
" tide to Frart^oit Albert, ond on the •outh-wc»t tide to ungninted land*; to- 
" gethtr with an old hou«e thatched with straw, l.'t fret by 30, n ttore hou*a 
" of cedar log*, roofed wilh bark, 18 fret by 'M, with arable land for sowing 
*• three buihel* and a half of grain. Now I do hereby give noiiro, that the 
" first mentioned piece of land will be told and adjudged to (ho highest bidder, 
" at the church-door of the said Parish of St. John, on Thursday, the fifteenth 
" day of I)ecero jer next, at eleven o'clock io the forenoon, and the second 
" piece abore described situate at Madouaxka, will also be told aod adjudged to 
" the highest bidder, at the door of the House or Chajtrl where the inhabitants 
" meet for Divine Service at Madouaska, aforesaid, on Friday the sixteenth datj 
" of December nert, at eleven o'clock in the forenoon, nt which retpeclivc lime* 
" aod place*, the condition* of tale will be made known by 

«'Ja. Shepherd, Sheriff. 

" All person* having claim* on the above described premises, by mortgage 
" or otherwise, are hereby requested to give notice thereof to the suid ShorifT, 
" at his Office in Quebec, before the day of sale. 

<• Quebec, lOlh August, 1791." 

3. Exlrcirt from the Minnlrs nf the Ezcrutlvc Cnunril of the 
Province of Qiubcr, relative to the Tcmisqiuilu Road, 
7th July, 1785. 

" Thursday, Ith July, 1785. 
"At the Council Chamber in the Bishop's I'alaco ; 
PHESFNT : 

" The Honorable IIekrv Hamiiton, K«q'iire, Lieutenant Governor and 

" Commander-in-Chief, 

" Hugh Finlay, Henry Caldwell, 

" FIdward Harrison, Francis Baby, 

" Adam Mabane, Sumucl Holland, Esquires. 

•• J. G. C. Da Lery, 
" The Council resumed the consideration of the Po*t Master General's 
" proposition relative to the Tioad from Kamonrasha to Lake Trmisquata, and 
" iiaving examined Air. Danbourgess's Report of the expense of carrying this 
" plan into execution, which exceed* considerably the calculation* formerly 
" made by Messrs. Finlay and Collins, were of opinion, that the whole should 
" be as »oon as possible transmitted to His Majesty's Secretary of State, that 
" hi* M«je*ty'* pleasure may be known thereon ; and, in the mean time, that 
" Mr. Danliourgess should be directed tn proceed with the fifty men already 
" empUye.d by him on this service ; that wood should be cut in the proper season 
" for building the bridge over the River du Loup, and the necessary prepara- 
" lions made for opening the communication aijrceahle to the plan proposed : from 
" which the (Jouncil were of opinion, many advanlac/es are to he exprctrd to this 
" Province as well as Nova Scotia and New Brunswick, particularly in time of 
" war, when an easy and speedy communication, independent of the Stairs of 
" America, becomes absolutely necessary,- and when in times of peace, from the 
" inconvenience of sending Government and other dispatches by way of Ncr 
" York, which is every day more apparent, the American Poit-flfastcr hmlnfj 



65 

"lately re/used the Post-Master-General here to allow the couriers from this 
*' Province to pass through their territories, insisting that all letters shall go by 
" their mails only, which can never be tx>mplied with by its. 

" Ordered, That copies of this minute be transmitted to the Gorernors of 
" Nova Scotia and New Brunswick." 

4. Extract from the Minutes of the Executive Council of 

the Province of Quebec, 9th July, 1787. 

" Monday, 9th July, 1787. 

PRESENT : 

" His Excellency the Right Honourable Guy, Lord Dorchester, Governor. 

" The Honourable Henry Hope, Esquire, Lieut.-Governor. 

" William Smyth, C. J. Le Compte Dupre, 

" Hugh Finlay, Edward Harrison, 

" George Pownall, J. G. C. De Lery, 

" Henry Caldwell, William Grant, 

" P. R. De St. Ours, Francis Baby, Esquires. 

" His Lordship intimated the propriety of ascertaining the limits between this 
" and the province of New Brunswick, and that the Surveyor-General of that 
" Province would soon meet Mr. Holland for that purpose ; and as it was 
" absolutely requisite towards opening and sustaining the land communi- 
" cation between the two Provinces, that the lands on both sides of 
" it should be settled, his Lordship proposed, and the Council concurred in 
" authorizing Mr. Holland to give assurances to all persons desirous to settle 
" there, and especially the Acadians in that vicinity, of the favourable intention 
" of this Government to issue grants in their J avow for three hundred acres to 
" the head of every family, out of the waste lands of the Crown in that quar- 
" ter ; and it is for that purpose recommended to them to explore the places 
" fit for cultivation on both sides of the route, and apply, by petition, in the 
<' usual course, for grants to be made, agreeable to the Royal Instructions." 

5. Report of the Committee of Council appointed to con- 
sider the Boundary between the Provinces of duebec 
and New-Brunswick, and the means of encouraging the 
communication, and settle the lands in that vicinity. 

" To his Excellency the Right Honourable Guy, Lord Dorchester, Captain- 
" General and Governor in Chief of the Provinces of Quebec, Nova Scotia 
" and New Brunswick, ^c. Sfc. Sfc. 

" The Committee of Council appointed to report as well upon the Question 
' of the Boundary between this Province and that of New Brunswick, as the most 
' eligible means of encouraging the communication and the settlement of lands 
' in that vicinity, have the honour to observe, that Mr. Holland's Report to 
' your Excellency has been duly considered by the Committee, who likewise 
' paid thorough attention to the description of the Boundaries of the Provinces 
' of Quebec and New Brunswick, as extracted from your Excellency's Com- 
' missions as Captain- General and Governor in Chief, and on the whole they 
' beg leave to remark, that if the Province of New Brunswick may of right 
' claim the sources of rivers that take their rise on the height of Land which divides 
' the Rivers that empty themselves into the St. Lawrence from those which fall 
' into the Atlantic Ocean, the ancient limits of this Governtnent will be curtailed 
' towards New Brunswick, and Seigniories under Canadian Grants as far back 
' as the years 162.3 and 1683, be taken into that Province ; besides, the Acadians 
' already settled above the Great Fall of Saint John's River, and such people as 
' may chuse hereafter to settle there, would be greatly incommoded if those parts 
^should be included in the Province a/ New Brunswick. Their commercial 
' dealings will be with this country, for they must, from their situation, be 
' supplied with European and West India commodities from Quebec. 



" Th« rommitl^f mott humbly (ubmit to jour Lordkhip. wliethtr it wotiM 
" nol b« for the iidvan()i|(e of holh (i ovrrnmenl* ihnt the Province of Qurbcc 
" he Meparafed/rom that •>/ AVu> UruHtvick by a line running along the hi^h- 
" laniU tchirh extend from the head of ChalenT* Jiai/ to thr foot of the frreat Full 
" of St. John't River, and from thence crusting the Htver f so tts to include thr 
" whole of the portage or carrmng place i and continuing in a straight line tou'urJn 
" the sources of the liicer (Shaudirre. which rise on the highlands that comnifne 
'• at the said head of the Bay of Chaleurs, and extend all the way to the north- 
" westernmost head of Connecticut Hirer. 

" W ii\i TtignrA lo settling the new road to F.akt Timiscouala, along that Ink' 
" and to down the Madavaakn, ihu C'ummiltee \it>i loave to rrpreneiil tlmt llm 
" (uil in thnt lengthy Inicl it pour in ir<!nprBl ; vel tlicro'i many part* ihroukfli 
" lU whole extent tit for cultivntiun. though not ul u qiitlitv to induro people 
" to fettle K) fur remoreil from a»ti«taoce iu their country labours, without gool 
" encnurnKemenl. 

" From information the Committee report, that tome Canadian Satllera 
" mav be had on the loliuwin^' lernii : 

" To obtain a grant ot two hundred acres of laod, free from quit-rent, fi>r 
" twenty yean, payirif; h icI de com. 

" To have lour Rcret cleaied and a lo(;-houte built (hereon, con*i«tinfr of two 
" apartment*, and tu have an oul-hi>u>o of lo^'i to serve as a stable and barn, 
" with ihree year* prnvnioni for each family. 

•' The l^omnjittoe hiive furihrr boi-n informed that Loyalists will set down 
" on that tract on iha followini; mnilition* : 

" That each family have a grant of land ('200 acres), free from quit-rent for 
" ten rears. 

" Twenty-five pounds to be advanced, to stock the farm ; the lands ond im- 
" provements to be security that the monpy shall be rrpaid in ten yi'/irs, biil 
" M ithout intcrent. Th<tt each family be conveyed (o the land allotted to llieni 
" without expense. To h;ivo two years' provisions allowed them, and deli- 
" vered at tlinr settlements. 

" The lands from the mouth of Madawaska down to tht Great Fallon St. 
" John's Hirer are of a superior quality ; it i« therefore presumed that Selllers 
" would til down in that pnrt on lets encouragement thiiii it above demanded. 
" By order of the Committee, 

(Signed) Hi'GU Fini.av, Chairman. 

" Council Chamber, l^th Oc.ober, 1787. 

♦3. Jtidgment of the Court oj Common Pleas at Qutbt-c. 

•• Dittri.t de) p. L Panel.) 

•• Quebec. J Gri-tTr. J 

" George Trois, par la Grjce de Dim. Roi de la Grande Bretagne. de 
" France, et dlrelande, Delendeur de la Fov, 4ic. Vu que Anselme el Mi- 
" chel Kubichaud, do In Riviere de Caps a olitenu jugetnenl le seizeme jour da 
" Uecembre dernier, dans la Cour des Plaidoyert Communt, pour le District 
" susdit, devant les Jugcs suinommes, a la Chambre d'Audience de la dite 
('our, dans la N'ille do Quebec, confre Fian^-ois Albert, habitant de Madawaska 
" dant le District, pnur la tomme de dix livres slerling, pour la dette, aiii»i q<ie 
*' celle de treize chelint deux sols courant, pour ses fraix, et qu'il re«te a laira 
" execution du dit jugement. II vout ett ordonne de prelever la (lite sonimo 
" et les frait sua dits des hiens mobiliers ct effects du dil Frar)9ois Albert dans 
" le sua dit District, exceptc toujours les animnux de charue, oulils et inntru- 
" ments d'agriculture, outils pour I'exercice du metier, et un lit garni ; m-w* im 
" ens que let autret biens mobiliers et efft-tt du dit Francois Albert ne sufhseui 
" pas, les dit* animaux de charue, invtruments et oulils d'agriculturo, ct outilt 
" de metiert, teronl vendus (mai» non le lit garni) huil jours apres avoir fail 
" afliciier ou crier la vente, au Dimaiiche. a la Porte de I'Eglise piiroii»i«le, 
" imniediatement apres le service diviu, et ayez I'aruent (ou deniers provenans 
"delavente) \'cndredi le vingt-septienia jour d'Avril procbain, ufin do la 
" livrerau dit Antelme RobichauJ ct Michel Robicliaud, pour sa ilelte et %e% 



■^ frais. svec un chellu pour ce precept, et quatre chelirts pour vos droits honrt- 
" raires ; et au cna qu'il vous resta quelques deniers entre las mains apres que 
•' vous aurez pleiiiement satisfait la susdit juEjenient et los.fraix, vous rendrai 
" le surplus au dit Francois Albert. Tumoin I'Honorable Jeiikia Williams 
•' I'un dea Juges de Notre Cour a Quebec, le 15 Jour de Fevrier, dans le 33we 
*' atin^e de notre rigne. „, ^ t, ^ 

(Sign?;) •'• VviLLiAMS. J. P. C. 

" A. Antoine Cureux Saint Germain, Capitaine, et autres Officiers da MiUca 
" de la Paroisse de Kamouraska, et Francois Cires, Capitaine et Jacques Cir, 
" Lieutenant de Milice de la Paroisse de Madaiuaaka." 

7. Report of the Solicitor-General and Surveyor-Geheral. 

" To His Excellenct/ Alured Clarke, Esquire, Lieutenant-Governor and Com- 

" mander-in-Chicfnfthe Pi ovince of Lower Canada, Major- General, Com- 

" manding His Majesty's Forces in North America, §-c. SfC. §-c. 

" Report of His Majesty's Solicitor-General and Surveyor-Genera), under 

•' Your Excellency's Reference of the 18th of June, upon the Petition of An- 

" selme and Michel Robichaud, of the Riviere des Caps, iu the Couuty of 

" Cornwallis, merchants, for a verification of the facts therein stated. 

" May it please your Excellency, 

" The Petition states, that for upwards of Gfteen years they have traded 
" with the inhabitants of Madawatka, and under divers licences from the Dis- 
•' trict of Quebec, have also traded with the Savages upon the frontiers, and 
" even with parts of the Piavince of New-Brunswick, and have purchased a 
' ' farm at Madawaska, and made considerable credits. 

" That the Government of Quebec having for many years established Militia 
" at Madawaska, and the Court of Common Pleas for the District of Quebec 
"having pronounced several judgments, and issued executions in their favour 
" against persons settled at Madawaska, they had entertained hopes that justice 
" would be done them ; but that in the beginning of May last, one Thomas 
" Cosiin, calling himself a Justice of the Peace for the Province of New- 
" Brunswick, had caused new officers of the Militia to be elected at Madawaska, 
" by a majority of voices, at au assembly of the inhabitants, and imposed a fine 
" on Anselme Robichaud, one of the petitioners, for having caused the goods 
•' of one Franfois Albert, at Madawaska, to be seized, though such seizure was 
•' fnade by virtue of an execution issued upon a judgment in the District of 
" Quebec. Moreover, that Jacques Cir, Lieutenant of Militia, established by 
" the Government of Quebec, though vested with the execution, was arrested 
" and made prisoner by a serjeant and four soldiers in His Majesty's troops, 
" who conducted him fifteen leagues, to a place called the Grand Sault. vyhere 
" he was compeUcd to pay ten pounds and thirteen shillings to obtain hia 
'^ liberty. 

" The petition further states, " that as the petitioners have not been able to 
" learn from the Field Officers of Militia at Quebec, nor from John Collins, Esq. 
"the Depufi/ Surveyor- General, nor from the said Thomas Costin, who calls 
" himself a Justice of the Peace, lohere the Boundaries of the Province may have 
<* been placed upon the line, designated by the statute (if the 14th of His Majes- 
" ty, and how the change of Government may operate, and to the end 
" that they may obtain justice in one or other of the Provinces, they 
" most humbly pray your Excellency to cause them to be i? formed, if it be 
'• possible, of the Boundaries oj the Province of Lower Canada, and to take such 
" measures with the Government of Now- Brunswick as your wisdom may 
" suggest, to prevent the ruin of the Petitioners and others. His Majesty's 
" faithful subjects, which their ignorance of the limits and such fines and force 
•' may occasion." 

*' To verify the facts above alleged, it w.isour intention to exa;iiine the pe- 
" litioners, and such witnesses as they might be able to adduce before us, and 
" for that purpose the Solicitor General acquainted Colonel Baby thereof, but 
" from the distance of their residence from Quebec, from their poverty and 
" from other causes, they have not yet presented themselves. There are, how- 

K 



68 

" •▼•r, Mrt»io papers tliKt ncrompanicd jour EtfelloiKy'* reference, nnd nre 
" barennto MnexrJ, xrliirli in order (o aroi'i any lunser deiny, inJuce ut to rc- 
" port to rour Kxcellenry, thnl the factf allpi;ed in the petition reipccling the 
" arrett oi Jaequei Cir, thr Litulinaut of'Miltlia at MnJawaika. nnj hit being 
" conducted to the Grand ShuIi, and there compeliud to t;ire Li* promiitorj 
" note to Francii Albert, for ten pound* and thirteen (hillin^i for preiendod 
" eipente*, taid to hare been occ:i*>oned by hi* having acted contnirr to tho 
" law* of tlie Prorince of Ne\r-I3run(wick, appear lo at to be true, judging 
•• from the original pnpert, rii ; — 

" I. A copy of the writ of execution ittued from the Court of Common Pleaa 
" at (Juebec. tetled I jth Fehruary, I71h2. 

" 2. A littter from Fran^oi* C'ir and Jacquei Cir to Colonel Dambourgtc, 
•' certified by Keifi* UoliiriiauJ, without date. 

*' 3. A paper signed Thomas Costm, Jaye <1 imix pour U district Jt Mada- 
" \easka tt York Contf, purporting to be an inhibition to Franfois Cir and 
" Jacques Cir from executing any order issuing from any other Province within 
" the District of MadiiKaska, unless it be signed and onUred by a Judge of Aeiv 
•' firunswick, dated '2Cth March, 1792. 

"4. An Bcknovrledi;ment, to which i* tubicribed Fran^oi* Albert, of hi* hiir- 
" iof received a promistory note of Jacque* (.'ir, for tan pound* thirteen thil- 
" lin|;t, for ezpentet ocratinnvd by hi* having acted contrary to llie lawt of 
•' New Drunjwick, dated 'JSlh .March. 1792. 

"3. A letter dated M.idawa'^ka, '2.'JJ April, 17W. from Frnn9oit Cir and 
" Jacque* Cir, to Mr. Dambourgct, Colonel of the South Militia. 

" Lieutenant Colonel Baby of the Canadian Militia, attiire* m thai a Com- 
" panu of Mditia w(U cstabluhcd bj/ His Excellency Lord Dorchester at J\f<i- 
" diwBska, about two years ago, and that Jacques Cir is a Lieutenant in that 
" Company, so that that fact is also true. 

" We have applied to the Council Oflice here for a copy of any proccidings 
" that might have been had in Council respecting the line of diviiion between 
" this Province and Xew Bru>uuick, and have obtained a copy of certain pa- 
" pen there deposited, which show that the line between the two Provinces 
" has not been ascertained: a copy of thotc paperi we herewith submit to 
" your Excellency, viz :— 

" 1. Description of the BoundariM of the Provincee of Quebec and New 
" Brunswick, from IIi» Excellency Lord Dorchester's Commitsiont, and the 
" United States of America, from the defioitive Treaty of Peace, in the hand 
" writiiie of Mr. Secretary Motz. 

" 2. Copy of Lord Dorchester's Instructions to Mr. John Holland, who was 
*' directed to accompany Mr. Fiiilay, in order to aiiist in marking out the 
" Boundary Line, dated Quebec, 9ih July, 17b7, alto in the hand vTriling of 
*' Mr. Secretary Motz. 

" 3. Letter by wav of Report, from Mr. John Holland to Lord Dorchester, 
" dated Quebec, 26th July, 1787. 

" 4. Report of a Committee of Council charged to consider the subject of 
" the Boundary Line between the two Provinces, and the means of cncoura- 
" g"^Z the communication and settling the lands in that vicinity, dated Council 
" Chamber, 13th October, 1787. 

" All which is respectfully submitted to your Excellency's consideration, 
(Signed) J. Williams, Sot. Gen. 

Samuel Holland. 

" Quebec, 29tb July, 1 792." 



69 

8, Extract from the Minutes of the Executive Coimcil of 
the Province of Quebec, ith August, 1792. 

" Saturday, 4th August, 1792. 
" At the Council Chamber, in the Bishop's Palace; 

PRESENT : 

" His Excellency Major General Clarke, Lieutenant Governor. 

" And the Honourable William Smith, j) 

Hugh Finlay, > Esquires. 
Fran9ois Baby, ) 

" Read the Memorial of A. and M. Robichaud, dated the 8th June, 1 792. 
- " Read a Report of the Committee of Council, appointed to consider the 
" Boundary/ between the Provinces of Quebec and New-Brunsw'cl:, and the 
" means of encouraging the communication and settlement of the lands in thai 
" vicinittj, dated \6lh October, 1737. 



" Read a Judgment of the Court of Common Pleas, dated 15th February, 
" 1792. 

•' Read the Report of the Solicitor-General and Surveyor-General, dated 
" Quebec, 20ih July, 1792. 

" Ordered, that these Papers be entered upon the Minutes, and it is humbly 
" suggested by the Board, that it may be expedient to transmit copies to the 
" Lieutenant-Governor of the Province of New- Brunswick, for his co-opera' 
" ti7ig in representations to call the attention of His Majesty's Ministers to 
" the adjustment of the limits iiecessary for jireserving the public tranquillity 
" on the borders of both Provinces." 

9. Extract from a List of the Parishes in the Province of 
Quebec, contained in the Minutes of the Executive Coun- 
cil of that Province, for the year 1791. 

" List of the Parishes in the Province of Quebec, with the dates of their 
" erection and their extent. Also, the names of the Seigneuries, parts of Seigncu- 
" ries. Fiefs, and other Grants holding of the Crown in each Parish respectivelij 
" comprehended ; likewise the number of Male Inhabitants in evert/ Parish, dis- 
" tinguishing those of the age of \6 years and not exceeding 19, from those of 19 
" years nf age and upwards, in conformity to the Order issued the 22d Feb- 
" ruary, 1790, by his Excellency the Right Honourable Guy, Lord Uorches- 
" ter, Governor-General of the Province of Quebec, 8ic. he, to a Committee 
" of Council. 



Parishes. 


Seiprneuries and other Grants 
holding of the Crown in each 
Parish. 


Total of the 

Males in the 

respective 

Parishes. 


remarks. 


Madawaska. 


Free and Com- 
mon Soccage. 


Settled by 
Acadians. 


19 years and 

upwards. 


Under Grants from 
theGovernment of 
New-Brunswick. 


6j. 



" Malcolm Fraser, Esq., reports a Seigneurio to be in his possession, called 
" Madawaska, near the River St. John, beintr of about three leagues on each 
" side of the River Madawaaka, together v.'ith the Lake Tamiscouata, and 
" two leagues in depth." 



TO 

Theso Jucuments rlearly prove tlie unsettlod condition, 
in point of fact, of tho eastern part of tho southi'rn lloun- 
(lary of iho Government of Uucbcc from the Bay of Chaloura 
nlonq the Hichlantls — tlioy also shew that immediately allor 
the Treaty of 17S:i, when settlemonts began to be made on 
the iip|x;r part of the River Saint John, pretensions widely 
difTcrent were set up by the respective Provinces of Quebec 
:ind New Rnmswick as to this I^imdary. — Tho discussions 
between these Provinces upon this subject appear to have 
terminated with tlic proposition made by tiie Government ot 
Q.ucbec, on the -llh August, 1792, to call on the Government 
of tho Mother Country to adjust the limits between them. — 
At thi.s perio<l the question as to what was the true River St. 
Croix intended in the Treaty of 17b>3, had arisen between 
<Jreat Britain and the United States. The decision of this 
question, upou which tho very starling point of tlie Bcmui- 
dary of the United States in the interior necessarily depended, 
was provided for in the Treaty of 1794. and since that time 
the other subjects of difrercncc between the two Powers on 
|XDints of boundary have been in a gradual process of dcvelopc- 
ment and decision, the most imjwrtant among tliem being 
that which forms the subject of these remarks. The con- 
llicling inter-colonial chiims between Canada and New 
Brunswick as to the southern boundary of the former, have 
been awaiting the issue of the national controversy, and tho 
result of this controversy will undoubtedly have a material 
influence on the judgment of tho Mother Country in the 
future adjustment of these Provincial Boundaries. 

But whatever doubt may exist as to fhr* true position of tlie 
Boundaries between the Provinces of Lower Canada and 
New Brunswick, there is none as to the fact of British pos- 
session, either under the one Province or the other, of tho 
whole district of country in which the.«;e boundaries arc to be 
found. The Canadian jurisdiction has already been exhi- 
bited. — That of New Brunswick will now be adverted to. 
This is shewn in the history of " The Madawaska Shttle- 
ment" — for which reference will again be made to American 
authority. " The Madawaska Settlemknt," it is always 
to be understood, is quite distinct from " The Fief or Ma- 
dawaska." and extends, on the mmn River St. John, from 
the neigiibourhood of the Great Falls, upwards, for several 
miles above tho confluence of the Madawaska River. The 
American authority, hero referred to, is that of Mr. Barrcll, a 
special Agent sent by the Government of the I'nited States 
to the disputed Territory for purposes of inquiry, in the year 



n 

IS'3S. His Report was conimnnicated to doiigress, in a 
Message from the President, on the 4th March, 1828. The 
following is an extract from this Report : — 

" This settlement," says Mr. Barrel!, " derives its name 
" from the River Madawaska, which empties itself into the 
" River St. John, about thirty-six miles above the Great 
" Falls, and about one hundred and sixty miles above Fre- 
" dericton. The first settlers arrived soon after the Treaty 
" of 1783, and the first grant, which Avas of fifty-one several 
'' lots or plantations of land, was made to Joseph Muzeroll and 
" fifty-one other French settlers, in the month of October, 
" 1790, by Thomas Carleton, Esq., then Lieutenant Gover- 
" nor of the Province of New Brunswick. The land granted 
" lay at intervals between the River Verte and the Mada- 
'' waska River, nine miles distant from each other, and on 
" both sides of the River St. John. The second grant was 
" of 5253 acres of land lying below the River Verte, and 
" Avas made to Joseph Soucer and others, by Lieutenant 
" Governor Carleton, in August, 1794. These are the only 
" grants ever made by the British Government within the 
" settlement, excepting one to Limo Hibert,* of 250 acres of 
" land opposite to and upon the River Madawaska, in May, 
" 1S25. 

" The laics of the Province of New Brunsiokk appear to 
" have been alwaijs in force since the origin of that settle- 
" ment. The settlers have acquiesced in the exercise of Bri- 
" tish authority, both civil and military, among them, and 
" have for many years had an organized militia in the set- 
'' tlement. * ***** The po- 

" pulation of Madawaska amounts to about 2,000, and is 
" almost exclusively French." 

In farther elucidation of the history of " The Madawaska 
Settlement," and in further proof of the actual possession 
of this part of the country, and of the exercise of jurisdiction 
over it by the Province of New Brunswick, there will be 
annexed to these remarks, full reports of two important trials 
which have taken place in the Supreme Court of this Pro- 
vince at Fredericton ; the first being the trial of John Baker, 
in the month of May, 1828, and the other that of Barnabas 
Hannawell and others, in the month of October, ISSl.f 

The facts elicited in these trials shew the anxwus desire 
of the State of Maine to oust Great Britain of her long estab- 
lished and peaceable possession, in this quarter. But the 



* Simon Hebcrt. \ Appendix No. II. and No. III. 



72 



doctrino laid down by the Court, as tho clear rule of pulilir 
law applicable to the case, namely, that " the existing British 
" sovereignty and jurisdiction can bo chans^cd only by n pub- 
" lie act of the Hriiish Crown for that purix)sc," has never been 
controverted. A chanu'o o( possession may indeed be cU'ected 
by force, but this is an alternative, which, it may be confi- 
dently asserted, the Government of the United Slates is not 
prepared to resort to, and to which Great Britain would never 
submit. 

In im early j^art of these remarks it was observed, that by 
carrying the boundary line to the north of the River St. John, 
the prejudice thereby occasioned to the British Provinces 
would not bo confined to a mere loss of territory. What 
has been stated res|K'Ctini; the i>oint of arfiial possession 
confinns the truth of that observation. The extensive Firf 
of Madaicaska, which, as already remarked, was granted 
several years before the Charter of Massachusetts, and which 
has been held uninterruptedly under Canadian jurisdiction 
to the present day, would be thoroby transferred to The 
United States, whose claims to territory, during the nego- 
tiations of 1783, could never for a moment have been sup- 
posed to extend beyond their rights when clearly established 
as British Provinces. The British authorities would also 
be thereby called upon to surrender a jurisdiction which they 
have continually exercised as far as the Great Falls of the 
River St. John, from tho earliest period at w^hich any settle- 
ments have been formed in that part of the country. A 
large body of British subjects holding pro]x;rty within the 
Fame territory, and some of whom have held it in unnitcr- 
rupted succession from the period of 1763, would be compel- 
led either to resign the possessions of their families, or to 
retain them under a Governniont to which they owe no 
natural allegi.incc,'. 

Nor would these bo the only prejudicial consequences 
resulting to Great Britain from the projxised transfer of terri- 
tory to The United States. It is well known to what degree 
the direct communication between Quebec and New Bruns- 
wick would be thereby impeded. How far the communi- 
cation between one part of Canada and another, — between 
Quebec, for instance, and the settlements at Gaspo, — would 
be rendered more difficult by the same award, may be col- 
lected from Bouchette's Topography of Canada, page 587. 

It may be doubted whether the anticipation of so much 
detriment to British interests, though unattended with any 
corresponding advantages to ThcUmted States, and evidently 



73 

calculated to defeat the most enlightened intentions of the 
Treaty, as explained before, would alone justify a departure 
from the strict rule of right, supposing it to be made clear in 
favour of the United States. But in proportion as the above 
mentioned consequences are evident, it is difficult to con- 
ceive that the British Government could ever have lent itself 
to an arrangement from which these consequences must 
naturally have been expected to flow ; and the stronger, 
therefore, is the presumption that the acknowledgment by 
Great Britain of the independence of The United States was 
felt to impose upon her the duty of carrying her claims, 
whatever they may have been, to the utmost extent war- 
ranted by principles of equity and considerations of mutual 
convenience, in order to protect the interests and secure the 
rights of her remaining Provinces. 

Presumptions, however probable, are not the sole founda- 
tions of the British claim. It has been proved, that the 
Rivers designated in the Treaty are not those which The 
United States insist upon, in virtue of an interpretation 
necessary indeed to the prosecution of their argument, but 
wholly unwarranted by the letter, context, and spirit of the 
Treaty. It has also been proved, that the Highlands which 
they maintain to be the Highlands intended by the Treaty, 
exclusive of all others, agree neither with the specific terms 
of the Treaty nor with the intention of those who framed 
it, as manifested by the general tenor of that instrument, 
and by the circumstances which accompanied its negotia- 
tion. It has been shewn to demonstration, that the north- 
west angle of Nova Scotia was totally unknown in 1783, 
that no provincial boundary line had been acknowledged, 
ascertained, or even existed for any practical purpose, at that 
time between the western extremity of Chaleurs Bay, and 
the Highlands situated at the heads of the Kennebec and 
Chaudiere Rivers, and consequently that the supposed iden- 
tity between that line and the line now claimed by The 
United States, is a mere illusion, resting on no positive foun- 
dation whatever. 

On the other hand, it has been estabhshed by proofs, suf- 
ficient to satisfy any reasonable and impartial mind, that the 
Rivers, described in the Treaty, as falling into the Atlantic 
Ocean, are entirely distinct from those which fall into the 
Bay of Fundy or the Bay of Chaleurs ; that the Highlands 
designated in the Treaty, are those which lying to the south 
of the River St. John, trend westward from the due north 
line drawn from the source of the St. Croix ; and, finally, 



that the line claimed by Great Britain, as passing along thoso 
Highlands from the point called Mars Hill, is not only more 
consistent with the precise terms of the Treaty, than any 
other line hitherto })roi^»osod, but is calculated to I'ulfil ui 
every impi^rtant respect the declared as well as tlu- jiresunied 
intentions of the Treaty, leaving within the territories of 
either Power the whole of those Rivers, of which the mouths 
are situated respectively therein, and in this manner provi- 
ding most efToctually for that great principle of the Treaty 
which has been already pointed out, that is to siiy, the ad* 
vantage and convenience of both jxirlics. 



KORTII-WKSTERA.MOST IIKAU OF C03rSBC?TICi:T IirVER< 



Thf. second article of the Treaty of 1783, after describing 
tlie Highlands, along which the northern boundary of The 
United States was to be carried, adds, that the boundary line 
was to extend " to the north-tcestcnxmost head of Connecti- 
cut River,''^ and " thence doicn olonQ^ the middle of that 
river to the Aoth decree of north Intitudcy 

It is claimed, on the part of Great Britain, that the boun- 
dary line in question should be carried to the source of the 
north-westernmost stream, which flows into the uppermost 
of the Lakes above Connecticut Lake, up to which the Con- 
necticut River is known by that distinctive ap|X!lIation ; and 
that from thence the line should be traced down along the 
middle of that river to the 45th degree of north latitude. 

The grounds on which that claim has been rested, are, 
first, that the River, which issues from Connecticut Lake, 
now bears, and has always been known by the sole appel- 
lation of Connecticut River, and, secondly, tliat, as no stream, 
which joins the Connecticut River below where it is known 
by that name, can with propriety, or according to geogra- 
phical practice, be taken for the Connecticut River; so, it 
is certain that no head-water of such stream can be taken for 
a head water of the river itself. 

In opposition to the British claim, it is contended, on the 
part of The United States, that the north-westernmost head 
of Connecticut River intended by the Treaty, is either acer- 
tain head of a stream called Hall's Stream, or one of another 
stream, called Indian Stream, both which streams fall into 
the Connecticut or main Connecticut River, from the north : 



75 

ihe former at a short distance above or below the 45th deffree 
of north latitude, according as the real situation of that paral- 
lel, or its supposed situation agreeably to a survey made in 
the year 1772,* is taken, and the latter between two or three 
miles, more or less, according as the one or the other of those 
principles is adopted, above the same parallel. 

The grounds upon which this counter-claim of The 
United States is maintained, are various, but they are all 
reducible to one, namely, that the " head of Connecticut 
River" intended by the Treaty is the head of the north- 
westernmost branch falling into that river, without reference 
to the specific appellation, or superior volume and length of 
the main river above its confluence with that branch. 

It is evident that in this proposition two terms essentially 
different from each other, are confounded together. Hall's 
Stream, and Indian »Stream, are branches of the Connecticut 
River, each having its own peculiar heads or sources. The 
Connecticut River has also its heads or sources independent 
of them, and it is, no doubt, the most north-westerly of 
these last mentioned sources or heads, that is " the north- 
westernmost head of Connecticut River," which the framers 
of the Treaty intended to designate. 

No one would think of looking for the heads of the Rhine 
at the sources of the Moselle and Maine, though both these 
rivers are tributary to the Rhine in the same manner as Hall's 
Stream and Indian Stream are tributary to the Connecticut, 
but they must be looked for in the range of the St. Gothard 
Mountains, where the several heads of the Rhine, to what- 
ever point of the compass they may be referred, are 
alone to be found. The same observation may be applied 
with equal truth to tiie Mississippi, the Ohio, and the Mis- 
souri. The waters of these three great rivers of the North 
American continent finally unite in one channel, and reach 
the Gulf of Mexico under the common name of Mississippi, 
But each of them has its own heads and sources distinct from 
those of the other two. On MitcheH's map the sources of 
the Ohio are laid down by name a little to the south of Lake 
Ontario ; and the heads of the Mississippi, of which the pre- 
cise situation was then unknown, are pointed to in equally 
express terms at a distance of nearly thirty degrees of longi- 
tude to the west. 

In treating this question. The United States have fallen 
into an error of the same kind as that which led them to 

* This survey will be more particularly adverted to under the third head of 
these remarks. 



7t> 



confound the Bay of FunJy with the Atlantic Ocean in dis- 
cussing the fonnor {X)int o( lUllcrcncc. Except where dif- 
ferent branches of a river bear the same name, with some 
distinctive addition apphed, as in the case of the Penobscot, 
to each branch, the name which is borne by a river at its 
mouth, accompanies the main channel, and the main chan- 
nel alone, as it is traced upwards into the country. Whert^- 
crer the river forks, the name, if it be not altoiiether lost, as 
in some peculiar instances, adheres to that branch which 
exhibits in the strongest degree the characteristics of the 
river below the confluence, and the length of the channel so 
named constitutes the river to which the name applies. It 
has alrtady been shewn, that the heads of a river are not to 
be confounded with its brandies, which have scjiarate heads 
of their own, and, in the particular case now under discussion, 
distinctive appellations. The branches terminate at their 
juncture with the main river. 

Other strong arguments, in support of the British, and in 
refutation of the American claim upon this jioint, might be 
adduced ; but it is intended, in these remarks, to give only 
a general view of this part of th'.- disjtute. 



UOVKD.VRY ALOSU THE PAHALLEL OF tS" NORTH LATITl DE. 



The principal circumstances relating to this third point of 
diflorenre may be comprized in few words. 

By the olh Article of the Treaty of Ghent it was agreed 
that Commissioners, to be appointed for the I'urjosc, should 
cause the boundary " from the sotirce of the llivcr St. Croix 
" to the River Iroquois or Calaraguy (St. Lawrence) to be 
" surveyed and marked." A preceding clause of the .same 
article contains the following words : " whereas that part of 
" the boundary line between the dominions of the tAvo 
" Powers, wliich extends from the source of the River St. 
" Croix. — to the north-westernmost head of Connecticut 
" River, thence down along the middle of that river, to the 
" 45th degree of north latitude, until it strikes the River 
" Iroquois or Cataraguy, has not yet been surveyed," &c. 
Then comes the agreement as above. 

The particular part of the boundary line here in question 
is that which extends /roy/i the iniddlc of the Connecticut 
River along the A5th degree of north latitude to the River 
St. Lawrence. 



77 

The survey agreed by the Treaty to be made of this por- 
tion of the boundary Vme was commenced and executed, 
with respect to a considerable part of it, by Astronomers 
duly appointed for the service in the year 1818. The Bri- 
tish Commissioner and Agent were uniformly ready and 
desirous to proceed in ihis work ; the difficulties which pre- 
vented it arose altogether on the part of The United States. 

The complete execution of the survey thus agreed to be 
made, is claimed by Great Britain on the simple ground of 
the clear binding terms of the Treaty. 

The United States now object to the execution of the 
Treaty in that particular, on the ground of its having been 
ascertained, that the part of the boundary line in question 
had been previously surveyed and marked, and, therefore, 
on the supposition that the Treaty of Ghent did not intend 
to institute a fresh survey of those parts of the boundary 
line, which were already surveyed and marked by compe- 
tent authority, but only to cause a survey to be made of 
those parts of it which had not been before surveyed and 
marked in that ofhcial manner. 

It remains to be decided, whether an express stipulation 
of a Treaty is to be set aside in order to justify The United 
States in retaining a portion of British Territory, which had 
passed into their possession in consequence of a delimitation 
at variance with the express terms of the Treaty, and which 
they continue to hold only by deferring the execution of a 
positive provision of the Treaty of Ghent. 

Great Britain claims, as the line due west on latitude 45° 
from Connecticut River to the River St. Lawrence truly 
intended in the 5th Article of the Treaty of Ghent, the 
parallel of latitude 45° between these two rivers as 
resulting from the astronomical observations made under 
the authority and by the order of the Commissioners ap- 
pointed to carry into effect the provisions of that Article of 
the Treaty. 

The Agent of The United States opposed heretofore 
the claim of Great Britain, by laying before the Board of 
Commissioners proof of the running of a line intended 
to be along the parallel of latitude 45°, and extending 
from Connecticut River to within about ten miles of tho 
river now called Saint Lawrence, by order of the Govern- 
ments of New York and Quebec, between the years 
1771 and 1774. This line, he contended, having been 
for many years acknowledged as the boundary between 
the two countries, tho provisions of the Treaty of Ghent 



78 

that a line due west on latitude 45*^ from Connecticut 
River to the River Saint Lawrence, shall be surveyed and 
marked, had in view only the ten miles wliich had been 
left unfinished, and not the 140 miles which were already 
surveyed and marked under the authority of the local 
Governments.* 

The claim of The Ihiited States to the old lino of boun- 
dary, which their Aqent had thus endeavoured to uphold by 
the circumstance that tliis line had formerly been left incom- 
plete, was afterwards supported by the contrary i>roof that 
this same line had been entirely completed at the lime above 
referred to. It appears, indeed, that the same archives, 
from whicli the Acent of The United Slates drew his male- 
rials for jirovini; that the line uj)on latitude 15"-' had been 
only ivxrtially ascertained, contain likewise the proof that the 
whole of this lino had been determined under the same au- 
thority, without any other interruplion than that inleri>osed 
by the seasons, and that all jvtrlions of this line had receiv- 
ed an cijual sanction from the two provincial governments. 
There is no intention, on the part of Great Britain, to deny 
that this line liad been considered as accurate in the year 
177 I, when it was finished. It must likewise be allowed, 
that this line haviimbeen once established, h;is continued for 
want of a better one, to be practically the line of boundary 
between the two countries. But it is capable of proof, that 
long before the conclusion of the Treaty of (Jhent, both 
Governments liad received information whicli must have en- 
tirely altered their opinion res|K?cting the correct execution 
of this line. It apjx-ars from documents laid before the late 
Commission, that each of the two Governments had gootl 
reason to believe, that the territory which would have fallen 
to its share from thr* line of boundary, if correctly ascertained, 
had been considerably curtailed by the errors which had 

• The American Agent, ot the same lime, declared, tlial if hi» view, xyilh 
regard to this former survey, dhonid not be nrquiejcod in tiy tiio C<>mmi«*ion- 
rrs, and if the question •hould be «till contiJered as unsettled, he should, in 
ihfit cnse, ho compelled to require that ihe parallel of 4.')'^ north latitude sltould 
he laid down according to what he termed the principles of ^' ijeoceulric latitude" 
as contra-distinguished fron^ iho pencrally received or " ubserted \niUuile." 
The practical effect of the substitution oi geocentric for observed latitude would 
be to throw the parallel of 45" north latitude, about thirteen miles further to 
the north than the true parallel. This claim to tiio adjustment of the boun- 
dary line in question upon the principle of geocentric latitude, thus put forth 1)7 
the American Ajfcnt, allhouijh not afterwards urped, yet was never disavowed 
or retracted by the American Government. It was probably oninff to litl* 
rircumstanca that (he Kin(? of the Netherlands, in his award, cxpre«*lv declared, 
that the line upon the paialUl of IJ" ihoulJ be lun npnn the prinriplo of thn 
ehterved latitude. 



79 

crept into the operations of the surveyors, by whom thishne 
had been determined. It is not surprising indeed, that the 
Governments should readily have given credit to the inform- 
ation which they received respecting the inaccuracy of 
this line. The latitude of but one single spot on the eastern 
bank of Lake Champlain, had been ascertained in the year 
1767, at a time when portable instruments for accurately 
determining the latitude were rare in Europe, and much 
more so in America. From this spot surveyors had, appa- 
rently by means of the magnetic needle only, run lines in- 
tended to be along the parallel of latitude 45*^, extending to 
the distance of ninety miles on one side, and sixty miles on 
tlie other, without ever checking their operations by any 
new determinations of latitude. These operations required 
of course a very exact knowledge of the variation of the 
needle, which is not very readily obtained, and they Avere 
carried on through an almost uninterrupted dense forest. 
The State of Vermont, whose northern boundary is formed 
by the line on latitude 45*^, extending ninety miles from the 
eastern bank of Lake Champlain to Connecticut River, ap- 
pears to have first suspected the accuracy of this line ; and, 
as early as the year 1806, the Government of that State 
engaged Dr. Williams, the historian and philosopher of Ver- 
mont, to ascertain the correctness of their northern boundary. 

He reported that the line, as drawn, deviated to the south- 
ward of the parallel, under an angle of eight degrees ; that it 
consequently cut off, in its eastern prolongation, more and 
more from the territory which ought to belong to the State 
of Vermont, and that that State had suffered a loss of more 
than 600 square miles of its territory by the whole course of 
this erroneous line. The Report of Dr. Williams was re- 
ceived and approved by the Legislature of Vermont ; and it 
appears, that, in the opinion of the people of that State, the 
inaccuracy of their northern boundary, and their loss by it, 
was from that time placed beyond the reach of doubt. 

It appears that the Government of Vermont only waited 
for a favourable moment in order to obtain through the, 
mediation of the General Government of The United States, 
the territory of which they thought themselves unjustly 
deprived. This opportunity presented itself at the conchision 
of Peace in 1814; and the Treaty of Ghent contains, ac- 
cordingly, the provisions cited above.* 

* It is to be obseivecl that tlie Treaty y?es tlie words " ascertain and deter- 
mine'' with regard to points only; the op«raiion of tracing or running a line i« 
in tiie Lmgunge of the Treaty designated by the words "survey and mark." 



80 

It is not contended on cither side, that the negotiators of 
the Treaty of Glienl were unacquainted with the existence 
of tlic old hne, and the Amorioau negotiators must certainly 
have been as fully aware of it as the Hritish. Both parties 
must have been desirous of substituting a new correct line 
of boundary for the old one, the errors of which were gene- 
rally known, when such a good opportunity presented itself, 
especially as other circumstances rendered it adrisable to 
establish the other jKirts of the boinidary which had never 
yet been established at all. The clear words of the Treaty, 
by which the surveying and marking of this part of the 
boundary, is made one of the " several {)ur{xises" for which 
the Commissioners were to be apix)iuted, manifestly prove, 
that such was the intention of both Govenun'MUs, parties to 
the Treaty. Thai this was really the intention of the 
framcrs of the Treaty, and that the words of the Treaty 
were at first likewi.se tuiderstood agreeably to this interpret- 
ation by the Government of The United Slates, clearly 
npjx?ars from what has taken place during several years sub- 
sequent to the date of the Treaty. The American Negotia- 
tors of the Treaty of Ghent are alive, and no deposition of 
any one of them, as in the ca.so of the River St. (/mix, has 
been brought forward to prove that they were unactpuunled 
with the existence of the old line, or that it was not their 
intention that this provision of the Treaty should have the 
effect, that a new line of boundary along the parallel of lati- 
tude 45*^ from the Connecticut River to the River St. Law- 
rence, should be established by accurate astronomical obser- 
vations. 

No reluctance was shewn on the part of The United Stales, 
to carry on the operations necessary for the determination of 
the parallel of latitude, till some time after it was 
known that the changes which would be produced by the 
establishment of the new {xirallel of latitude as the boundary 
line, would be mainly against the interest of The United 
States, principally by the loss of the fortifications at Rouse's 
Point on the western bank of Lake Chamj)lain. 

It having been thus clearly proved that there was sufficient 
reason for making the provision that the parallel of latitude 
45*^ from Connecticut River to the River St. Lawrence should 



These words are in the jlh Article of llic Treaty applied to a lin« consistinjt 
of four different parts, viz: a meridian,— a line alon:,' lii^'liiandg,— a line ihronL'h 
Rriver,_and a parallel of Lililudo. It i« well known tlinl the meridian lind never 
been established, and ih.it, therefore, llio words " survey and mark" were in 
the Treaty intended to imply all the operations required for nsccilaining 
it, and amcng tluac aslrcriCr.-.ii.;i'. obicrrnlions. 



81 

be established anew ; that the provision that such a new 
parallel should be surveyed and marked under the authority 
of the Commissioners appointed by both Governments is 
clearly expressed in the Treaty ; that there is no reason to 
believe, that it was not the intention of the negotiators who 
framed the Treaty, as well as of the Governments v/ho 
ratified it, that this new line should be established, and be 
considered as finally and conclusively fixing the boundary 
between the two countries ; and that both Governments 
sanctioned for several years the measures which were taken 
for carrying into eflect this particular provision, Great Britain 
believes that she has fully proved the justice of the claim 
which she has preferred, and contends, accordingly, that the 
provision, as cited above, of the 5th Article of the Treaty of 
Ghent, shall be carried into complete cfi^ect. 



As a matter of historical interest, connected with this 
subject, there will be subjoined to these remarks the Award of 
the King of the Netherlands.* This aAvard was, in the out- 
set, peremptorily rejected by The United States, and in the 
progress of negotiation Great Britain also withdrew her con- 
sent to be bound by it. Whether it was liberal or wise in 
The United States, thus to reject this award, every candid 
man will form his own opinion. The award has been de- 
scribed in a report of the Senate of the United States, as 
" The impartial opinion of a disinterested Judge, selected 
" by both parties, to settle a question of great pei'plexity.''^ 



* Appendix No. I. 



AFFEi^Bii:* 



NO. I. 

— ©o© — ^ 

DECISION 

"bF THE iilXG OS' THE XETHERLAWDS, IN RELATIOSf TO 

THS DISPUTED FOUNTS OF BOUNDARY 
tinder the Fifth Article of the Treaty of Ghent. 



TRAlSSIiATIOiV. * 

VniililAJ*!, by «ie Grace of GOD, King of tlie Nctlicrlands, Prlnea 

of Oi-ajage, Nassau 5 Grand Dwite of Iiuxemburg-, &c. &,c, &c. 

Having accepted the functiona of Arbitrator conferred upon us by the note 
of the Charge d' Affairs of the United States of America, and by that of the 
Ambabsador Extraordinary and Plenipotentiary of Great Britain, to our Minis- 
ter of Foreign Affairs, under date of the I2th January, 1829, agreeably to tha 
fifth article of the Treaty of Ghent, of the 14ih December, 1814, and to the 
first article of the Convention concluded between those Powers at London, ou 
the 29th September, 1827, in the difference which has arisen between theoi 
on the subject of the boundaries of their respective possessions : 

Animated by a sincere desire of ansvverinsr, by a scrupulous and impartial 
decision, the confidence they have testified to us, and thus to give tbem n 
new proof of the high value we attach to it : 

Having' to that effect, duly examined and maturely weighed the contents of 
the first statement, as well as those of the definite statement of the said differ- 
ence, which have been respectively delivered to us on the 1st of April of the 
year 1830, by (he Envoy Extraordinary and Minister Plenipotentiary of tha 
United States of America, and the Ambassador Extraordinary and Plenipo- 
tentiary of His Britannic Mnjesty, with all the documents thereto annexed in 
support of them : 

Desirous of fuifillinjr ut this time the obligations we have contracted in ac- 
cepting the functions of Aibitrator in the aforesaid difference, by laying before 
ihe two high interested pcrties the result of our examination, and our opinion 
on the three points into which, by common accord, the contestation is divided. 

Considering that the three points above mentioned ought to be decided ac- 
cording to the treaties, acts and conventions concluded between the two Pow- 
ers ; that is to say ; the Treaty of Peace of 1783, the Treaty of Friendship, 
Commerce and Navigation of 1794, the Declaration relative to the River St. 
Croix of 1798, the Treaty of Peace signed at Ghent in 1814, the Convention 
of the 29ih September, 1827; and Mitchell's Map, and the Map A. referred 
to in that convention. 

We declare, that. As to the first point, to wit, the question, which i« the 
place designated in the Treaties as the North-west angle of Nova Scotia, and 
what are the highlands dividing the Rivers that empty themselves into the 
River St. Lnvrence from thosf? which fall into the Atlantic Ocean, along 
which is to be drawn the line of Boundary, from that angle to the North- 
western-most head of Connecticut River. 

~ It .Yc^f.— Ti.ii) is i!ic Americanpfl'.clal tracaUtion. 



II. 



APPE><DIX 



iJunrUertng, Tk^t (h« h)|{h iriCei'««r*d pailiat re»(icciivel)r ciaim (hat lint of 
hoiiiidary at the Sautb, and at (he North of the Rivrr St. Jubn ; and hava 
r»cU iMiliraied on tha Map A. the i:iic nrbich they claini. 

CuHsidering, Thnt accordini; to tha intiancet all(>(;cd, the trrm highland ap- 
phf« not only to a billy or elevaird country, but alto to land which, widiAui 
lipinif hilly, divides waters flowini; in diffrrent directiont ; and thai (hut (ha 
rli«iiir((*r inore or leis hilly and eleru(ed of (he coun(r)' throuijh which ara 
firawn tiie (wo linn reapeciirely cluimed, at (he Nor(h, and at the South, uf 
the River St. John, CHimut form the batii of a choice between them. 

That the text of the lecond Article of (he Treaiy of 1783, reciti*, in part, lh« 
word* previously uied, in (he F'focl<nnB(ion nf I 7G3, and in (he Quehi-c Hct of 
1774, (n ind>cale (he Soudiem boundariea of the Government of Quclier. 
from Lake Champlain, " in foiiy-fivc degrroa of Nofdi I.ii(!(ude, alonj: ih* 
hi|ihland« which divide the Kivcr* (liat empty (hemtelvei into (he Kiver S(. 
La«vrenre, fmrn (hi>«e which fall into (he aea, alao along (he north coaal of 
(he bay d«-» Chuleura," 

That in 1763. 1765, 1773. and 1782, it wai eitoblithi d (hat Nova Scotia 
ahould be buunded at the north, a< far a* the weiiern extremity of (he Buy 
del Chaleurt, by the southern bdundary of '.he Province of Quebec ; thnt tins 
delimitation is again found, wiili rrtpect to the Province uf Quebec, in the 
Commi«»ion of the Governor General of Quebec of I 7iS(J, whi-rrin (lie bin- 
f!u.i|{e of (he l*fOclami(ion nf 171*3 ani nf the Qiibec Art of 1774, ha* be<-n 
Oard, as a!*;) in the commi»»ioii» of I 7sG, nnd oiber* of *ub<e(|iieiii dales of 
the Goveriiori of New Ikunswuk. with rr»pect (o (he List mentioneii Province, 
■« well as in a ({rcat number of maps anterior and posleiior, to the Treaty of 
1763; a":l the first article of (he said trea(y specifics, by nam*, (he stales whuie 
indppi-ndenca is acknowle'lced : 

But (hat (his mendon does not imply (Imp!lquc) the rnOre coincidence of 
the l»)undaries between (he two powers, as settled by the following Article, 
with the ancient drlimi(a(ion of the Hriii<>h Provincr*. whotc ptcirrvaiion ia 
not mentioned in (he Trj-niy of I 783, and wli ich owing (o its conlintiHl chi-.ngea, 
and the urcertaiiity which continued (o exist re«peciing it, crcutcd, from (imi 
to (ime, differences between the Provincial authoiities: 

Thot there reiiilis from the litis drawn under the treaty of I 783, through the 
freat Lakes, west of the Rirrr St. Lmvrence. a licpartiire fiom the aruiciit 
provincial churter^, with regard to those boundaries : 

That one would vainly attempt to expUin why, if (he intention was to re- 
tain the ancient prnvincixl boundnry. Mitch>-"'s map, published in 1 775, and 
c.>n«equently ontetior to die proclamsticm nf 1713, and to the Quebec Act of 
1774. WH« precisely (he one used in the negntlaiion of 1783; 

That Great Britain proposed, at first, the River Piscadiqua os (he Eaitern 
boundary of (he L'nited Stated ; nnd did not sulupquent'y agree to tlic propo- 
aitiiin to cau»e the boundary of Mulne, or Muisathusctts bay, to be ascertained 
at a la(er perloJ : 

Thnt (he treaty of Ghent stipulated for a new cxaminniion on the spot, which 
<oiild not be made applicable to an hi'ioiical or Bdmiiii»irative boundary : 

And that, therefore, the ancient delimiiation of the British Provinces, does 
not, ei(her, aflford the basis of a decision : 

That the loiuitude of the North-west angle of Nova Scotia, which ought to 
coincide with that of the source of the St. Croix River, was deteroniiird only 
by the derlamiion of 17f)S, which indicated that River: 

That the Treij(y of fricndsh'p, commerce, and iinvigntinn of 17f)4, alludes 
to the doubt wliich had nri'pn with respect to (ht- River St. Croix, and ih.it 
the first instructions of the Congress »( (he (ime of the nrgo(iHii'>n» which 
resulted in the Treaty of I 783, locate the *aid angle at tlic source of the River 
St. John : 

That the Uiifode of thnt angle is upon the banks of the St. L«wrer>ce, rc- 
•orJin^ to Miicfieii't map, wJneh is atktiowledjfed to have regululed the com- 



AifPENDIX. Ill' 

b)n«d and official labori of the negotiators of the Treaty of 1783; whertat, 
Bgreeablv to the delimitation of the government of Quebec, it )• to be looked 
for at the highlands which divide the Rivers that empty themselve* into th« 
River St. Lawrence from those which fail into the sea. 

That the nature of the ground east of the before mentioned antjie not hav- 
Sns been indicated by the treaty of 1783, no argument can be drawn from it 
10 locate that angle at one place in preference to another: 

That, at all event?, if it were deemed pmppr to place it neerer to the source 
of the river St. Croix, and look for it, at Mars Hill, for instance, it wonld bo 
BO much the more possible that the boundary of New-Iirunswick drawn tlienc* 
north-eastwnrdly would give to that Province several norih-west angles, fitua- 
led farther north and east, according to their greater remoteness from Mart 
Hill, that the number of degrees of the angle referred to in tiie Treaty has not 
been mentioned : 

That, consequently, the north-west angle of Nova Scotia, here alluded tn, 
having been unknown in 1783, and the Treaty of Ghent having again declared 
it to be unascertained, the mention of that historical angle in the treaty of 1 783 
is to be considered as a petition of principle (petition de principe) afTording no 
basis for a decision, whereas, if considered as a toppjii-^phical point, having re- 
ference to the definition, vie: " that angle which is fcimed by « line drawn due 
north from the source of the St. Croix River to th<> hif^hlands," it forms sim. 
ply the extremity of the line " along the said higlihiiids, which divide tho»e Ri- 
vers that empty themselves into the River St Lawrence from t!iose which fall 
into the Atlantic Ocean," — an extremity which a reference to ihe ncrth-wes; 
ongle of Nova Scotia does not contribute to ascertain, and which stilt ren-'ain- 
ing, itself, to be found, cannot lead to the discovery of the line which it is to 
terminate : 

Lastly, that the arguments deduced from the rights of sovereignty f-Tercisrd 
over the Fief of Madawaska and over the Madawast<n 8-ttlement— ev< n fidn it- 
ting that such exercise were sufficiently proved — ciinnot decide the question, 
for the reason that those two Bettlements only embrace a portion of the territory 
in dispute, and that the high interested parties have acknowledged the country 
lying between tlie two lines respectively claimed by them, i>s constituting a 
subject of contestation, and that, therefore, possession cannot be considered a^ 
derogatii-g from the right, and that if the ancient delimitation of the province* 
he set aside, which is adduced in support of the line claimed at the north of tha 
River Saint John, and especially that which is mentioned in the Proclamution 
of 1763, and in the Quebec Act of 1774, no aranment can be admitted ir» 
support of the line claimed at the south of the Rivvr St. John, which would 
tend to prove that such part of the territory in dispute belongs to Canada or 
to New-Brunswick. 

Comuleriiig, that tl;e question divested of the inconclusive arguments drawn 
from the nature, more or less hilly of the ground, — from the ancient dciimiia- 
lion of the Provinces, — from the north-west angle of Nova Scatia, and from 
the actual possession, resolves itself, in the end, to these : wlurh is the liri9 
diawn due north of the River St. Croix, and which is (he ground, no mhtter 
whether hilly and elevated, or not. vvliich frotn that line to the north-western- 
most head of Connecticut River, divides the Rivers that empty themseivj-* 
into the River St. Lawrence from those which fail into the Atianiic Ocean; 
That the higl) interested parties only agree upon the fact that the hout.daiy 
sought for must be determined by such a line, and by such a ground ; that they 
further agree, since the declaration of 1798, us to the answer to be givin to th* 
first question, with the exception of the laiinide at which the line drawn doe 
north from the source of the St. Croix River i« to terminate ; that the said lati- 
tude coincidi'B with the extrair;:;y of the ground which from that line to 'he 
ftorth-westenimost source of Coimfcticut River divides the R!ver« whkh 
empty themselves inio the River St. Lawrence from thoee which fail into th« 
AtiKniic Ocean ; and that, tb^'i efo;?, it ooiy remfiii;s to a&ccrtain that ground : 



iV. APPLNDIX. 

That 01) entering upon ihti pprrmion, it it diicorered on the one band : 
Fir»t, ihit if, by idopiing the line cl«imfd et the north of (he River S». 
John, (ireat Britain cannot he coniiiJered at ohtaining a territory of Im* value 
than if »he iiud accepted, in I 78."]. the river St. John at bcr frontier, tnkinjj in- 
to vievT iheaituation of the country tituatrd bctwren '.he Iliveri St. John and 
St. Croix in the vicinitj of the acK, and in the poisettion of both hanks of the 
River St John io the lower part uf ill courie, laid equivalent would, neverlhe- 
leat be deatrnycd by tbe interrupriou of die communication hrlween Lower 
C<inada and New Drun«wick, especu'ly between Qucbtc and Frrdericlon ; and 
one would vainly seek to difcovrr what motives cjuld have determined (h« 
Court of London to content to auch an ioterrup'.ion. 

That if, in the tccond place, in contradittinctiun to the Rivcrt that empty 
themtelvft into the River St. Lawrence, it lud been proper, agreeably to lh« 
!an|{ua|{e ordinarily uted in geography, to conaprrhenil tl>e Rivrrt fiillmg into 
the Bay of Fundy and Bay det (Jhaleurt iviih tliote emp'yina themtelvea 
d rrctly into the Atlantic Ocean, in ihe ffencricfll denomination of Rivers falling 
into the Atlantic Orran, it nould br hiiznrdoui to include in the >pecica 
brlon((inf( to that c!a»t the rivt-r* Saint John and Rctfigouclie, which the 
line claimed at the north of ihe River St. John «lividet immediately from Ri- 
ver* emptying ihrmtclve* into the River St. Lawri-nce, not with other Rivera 
fulling into the Atlantic Ocean, but alone ; and (hut to apply in interpreting 
the delimitation eatabiiahcd by a treaty, where each word mu*t have a mean- 
ing, to two exclusively tpecial raset, and where no mention ia made of (ho 
(jenui (genre) a general expression which would ascribe to ihem a broader 
meaning, or which, if extended la the Schood c Isles, the I'enobscot and the 
Kennebec, which empty themselve« directly into the Atlantic Ocean, would 
establish the principle that (he Treaty of 1 7S3 meant highlnnds that divirlo 
at well mediately at immediati-lv, the Rivers that empty ihemselvca into the 
River St. Lawrence from ihote whiofc fall into the Atbintic Ocean — » 
principle equally realized by boih lines. 

Thirdly : That the line claimed at the north of the River St. John doea not 
divide, even immediately (he Rivers that empty themselves into the River St. 
Lawrence from the Rivrt St. John end Hc^tigouche, but only livera that 
empty themselves into the St. .John and R<«iigourhe. with the exception of 
the last part of said line, near (he snurcet of the River St. Jol.n, and that 
hence in order to reach the Atlantic Ocean, the Rivers divided by that iin* 
from those that empty themselves into the River St. I^awrence, each need 
two intermediate chiinneU, to wit : ihp ones, the River St. John nnd the 
Bay of Fundy, and the others, tiie River Restigouche and the Bay of Cha- 
le!ir» : 

And on the other hand, that it cannot be sufTicietifly explained how, if tha 
hich contracting parties intended, in 178.3, to establish the lioundary nt th(» 
aouth of the River St. John, that river, to wiiich the territory in dispute is in 
a great measure, inrlebted for its distinctive character, hat been neutralized and 
set aside. 

ThRt thr verb " divide" appears to require the contiguity of the obj?cti to 
be " divided." 

That the said boundary forms at ils western extremity, only, the immediate 
reparation between the River Mettjarmette, anri the north-westernmost bead 
fif the Penobscot, and divide*, medintcly, only the R vers that empty them- 
selves into the River St. Lawrence from the waters of the Kennebec, Penob- 
scot, and Schoodic Lakes ; while the boundary claimed at the north of the 
River Saint John divides, immediately, the waters of the Rivers Rcstigouche 
and St. John, and mediately, the Schoodic lakes, and the waters r,f ihe Rivers 
Penobscot nnd Kennebec, from the Rivers that empty themselves into the 
River St. Lawrence, to wit: the rivers Beaver. Metis, Rimousky, Troia, 
Pistolet. Green, Du I.oup. Kumouraska, Quelle, Rras Sf. Nicholas, Du Sud, 
la Frtniir» and Chaudiere. 



APPENDIX. V\ 

That even selling aside the Rivers Restiojouche and St. John, for the reaion 
«hat th?y could not lie considered as failing into the Atlantic Ocean, the north* 
ffrn line would still be as near to the Sctioodic lakes, and to the wafers of 
the Penobscot and of the Kennebec, as th,e southern line would be to the Ki- 
Tprs Beaver, Metis, Rimousky and others, that empty themselves into the 
River St. Lawrence; and would, as well as the other, form a mediate separan 
tion between these and the Rivers falling into the Atlantic Ocean: 

That the prior intersection of the southern boundary by a line drawn du«» 
north from the source of the Saint Croix could only secure to it an accessary 
ftdvantage over the ether, in case both the onp and the other boundary should 
combine, in the same degree, the qualities required by the treaties : 

And the fate assigned by that of 1783 to the Connecticut, and even to the 
St. Lawrence, precludes the supposition that the two powers could have intend- 
ed to surrender the whole course of each river fiom its source to its mouth, to 
the share of either the one or the other : 

Conndering, That, after what precedes, the arguments adduced on either 
side, and the documents exhibited in support of them, cannot be considered ai 
sufficiently preponderating to determine a preference in favor of one of the two 
Jines respectively claimed by the high interested parties, as bu'.m Jaries of their 
possessions from the source of the River St. Croix to the north-westernmost 
bead of Connecticut River ; and that the nature of the difference and the vague 
and not sufficiently determinate stipulations of the Treaty of 1783, do not per- 
mit to adji.dge either of those lines to one of the said parties, without wound- 
ing the principles of law and equity, with regard to the other: 

Considering, That, as has already been said, the question resolves itself into 
n selection to he made of a ground dividing the Rivers that empty themselvea 
into the St. Lawrence from those that fall into the Atlantic Ocean ; that the 
high interested parties are agreed with regard to the course of the streams de-. 
lineated by common accord on the Map A. and affording the only basis of a 
decision. 

And that, therefore, the circumstances upon which such decision depends 
cnuld not be further elucidated by means of fresh topographical investigation, 
nor by the production of additional documents: 

We are of opinion. That it will be suitable [il conviendra] to adopt as the 
boundary of the two states a line drawn due north from the source of the River 
St. Croix to the point where it intersects the middle of the thalweg (*) of the 
River St. John, thence the mi<idle of the thalweg of that River, ascending 
if, to the point where the River St. Francis empties itself into the River St. 
John, thence the middle of the thalweg of the River St. Francis, ascending ir, 
to the source of its south-westernmost branch, which source we indicale, on 
the Map A, by the letter X, auiheniicated by the signature of our Minister of 
Foreir-n Affairs, thence a line drawn due west, to the point where it unites 
with !!ieline claimed by the United States of America ai;d delineated on the 
Map A, thence said line to the point at which according to said map, it coin- 
cides with that claimed by Great Britain, and thence the line traced on the 
nap by the two powers, to the north-westernmost source of Connecticut 
River: 

As regards the second point, to wit : the question, which is the north* 
westernmost liead of Conrieciicu: River: 

Considering, That, in order to solve this question, it is necessary to choo«e 
between Connecticut-lake River, Ptrry's Stream, Indian Stream and Hall's 
Stream : 

Considering, That according fo the us'jpe adopted in geography, the source 
end the bed of the River are <lenoted by the name of theRiver which is attached 
to §uch source and fo such bed, and by their greater relative importance a> 
compared to that of other wafers communicating with said river : 

• TIiBlwp(f—f« German rorapmind word-Tliol. v»H»j-, and VVeg-, way. It meanf har« 
tlt» (ie«>p«>»t channel of llip river 



Tl. 



irrtNDix. 



Coiuuieruig, Th»l in ofEcul leltfr of 1772 »lrf«dy n-.ention» thr ntme of 
lltll's Brook ; and that in an oflicial Irtter, of lubtoquent date in (he tama 
7car, Hail'a Brook it rapretcntfd at a troall river failiti(( into (he Conneciicut : 

That the River in which Conneciicut Lake it »iluatp<l appeurt more conti. 
drrable tlian either Hall't, Indian, or Perry'* Stffam ; that Ccnru'Cticiil Lake 
and the two Laket tituatcd norih\rard of it, teem to aicribe t» it a grea'er 
Tolumt of \rater than to the other three Uivcri ; and that by Mdmiding it to ba 
iht bed of the Connecticut, the course of that river it extended further than it 
would be if a preference wt-rc ijiveii to either of the other threi- llivert: 

Laitly, that the Map A, hitvinj; been rfC04jnized by the coiivention of 1827, 
•I indicating the coiirtet of ttreamt, the authoiity of thnt map would likewiit 
arem to extend to their appellation, tince in cnio of dispute, turh name of 
Ri»er, or Lake, rc«peciinjj which ihv pariiet were not agreed, might have been 
o-nitted; that said mip mention* (,'onnecticut Lake, and that the name of 
Conneciicut I^ke implici the applicability of tha name of Coiiiieriicui to iha 
River which flowt through the taid lake ; 

H'e are of opinion, that the itream tituated furihett to the north-wetf, 
among iLote which fall into the n'>rthernmoil of the ihrt-e laket, the Inut of 
which heart the name of Connecticut Lake, mutt be contidcred at the norlh- 
wettrrnmoit head of Connecticut Kiver: 

At to the third point, to wit : the quetlion which it the boundary to he 
traced from the River Connecticut, along the parallel of the 4Jih degree of 
north latitude, to the Uiver Saint Lawrence, named in tlie Trcatiet Iroquoit 
or ('ataraguy : 

Cunsi'ieriiig, that the high interettcd parliea differ !n opinion a* to the ques- 
tion — \\ heihrr the Tieatiet rrqirre a frrth turvey of the whole line of lK>iindary 
from the RiverConneciicut to the River St. F^twrcnce, named ifi the Trcatiet Iro- 
quoit or Cataraguy, or limply the completion of the ancient provincial turvcyt. 

Consideriii/^: That the fifth article of the Treaty of Ghent of 1814 does 
not ttipulate that *uch portion of the boundaiiet which may not liave hitherto 
been turveyed, thall be turveyed ; but declaret that the boundaries bava 
not been ; and ettablithet that they thall be, turveyed : 

That, in effvct, tuch turvey ought, in the relation* I), twccn the two powers, 
to be coiitidered at not having been made from the Coniiecticui m the River 
6l. Lawrence, named in ihe treaiiet Iroijuoit or Cataraguy, since the ancient 
Burvry wa* found to be incorrect, and had hern crd'red, not by a common ac- 
tord of the two Power*, but by the ancient Provincial anihoritiet : 

That in dficrminin? the latitude of placei, it it cuilomary to follow tha 
principle of the observed latitude. 

And that the Government of the United Stu'et of Ameiica hat creeled cer- 
tain furlificationt at ilie pUce tailed Rou&e'u Point, ti'uler the imprettion th«l 
the ground formed p«rt of their tefritory— on impretfcion tuflicientiy authorized 
by the cirriimttancet that (he line had, until then, been reputed to correspond 
with the 4alh degree of North Latitude; 

We are /•/ opitiion : That it will be tuilable [il conviendra] to proceed 
to frfth operationi to measure ihe observed lutitudr, in oider to mark 
out the bouriiliry f.om the River Connecticut along the parHiltl o( the 43ih 
degree of North Latitude to the River St. Lawrence, named in the Ireafiet 
Iroquois or Cataraguy, in such a matiner, however, tiat. in all catet, at the 
place called Rouse't Point the territory of the United State* of America shhil 
extend to the fort erected nt that place, and shall include said fort and ilt 
KilojiPtrical radiut [rayon Jviiomelrique.] 

Tbut done and given under our Royal Seal, nt the Hagur, thit tenth 
day of Janunry, in the yeir of our LoRP one thousand e'jjht hundraif 
and thirty one, and of onr Heigr, tha eighteenth. 

WILLIAM. 
Tbt Miniiier of Feri-ign Affairt, 

(S-jj-i^d) VRR'TorK PR SOKIEW. 



NO. ir, 

[From tba Fredericton Royal Gaaelte, Ma/ 12. 1928.] 



REPORT OF THE TRIAL OF 
JOMIV BAKER. 



Supreme Court. Easter Term. 



DURINO fhe sitting of the Court on Wednesday, the Attomer Gener&i 
[Robert Parker, Esquire,] stated to the Court, that he should be prepaifd 
on Thursday morning to proceed with the Trial of (he Indictment which 
lad lieen found against John Baker, and two others ; and understood th« 
Defendant was in atieiidance. 

On Thursday, immediately after the opening of the Court, the Attorney 
General moved for Trial ; and as fl;e Jury was called, it was iniimated to tha 
Defendant Baker, by the Court, that he might challenge any of the Jurors for 
cai'se : Tlie defendant declined avaiiincr himself of this privilege, and the Jurora 
were sworn, in the order they appeared. 

The Clerk of the Crown read the Indictmetit, wliich charged the Defendant! 
John Baker, James Bacon, and Charles Stud^on ; that they being factiouRly 
and seditiously dispoFed, and greatly disaffected to the Government of Hii 
MHJesly within this Province; did, at the Parish of Kent, in the County of 
York, conspire, comhine, confederate, and agree together, falsely, malicioujiy, 
and seditiously, to molest and disturb the peace and common tranquillity of this 
Province, and to bring into hatred and contempt the King ar.d his GovertJ- 
ment, and to create false opinions and suspicions in His Majesty's Sul)jecti, 
of and concerning the King's Government and Royal Power and Prerogative 
within the same : and iiiu thereupon then and there erect a flag staff, and place 
thereon a flag as the standard of the United States, and did declare the «^lac« 
10 be the territory of the United States, and did also afterwards present to 
His Majesty's Sul.jecls, a paper writing, and requested them to sign it, de- 
claring that by such paper they would bind themselves to oppose the execu- 
tion (.f the laws of Great Britain in that part of the said Parish, called the 
Madawaska Settlement : and did also obstruct the passage. of His Mnjei- 
ry's Mail, declaring that the British Governmer.t had no rigiit to send its 
Mail by that route ; and that they had received orders from the United Statea 
to felop the conveyatice of the .Mail tliroirtrh the same: and did also afterward* 
at another time, hoist the flag of the United States on a Staff there erected; 
declaring that they had actually entered into a written agreement to keep the 
»ame flag there, and nothing but a stronger force should take it down ; auii 
that th-y had bound themselves to resin by force the execution of the Lawi» 
of Great Britain ; in contempt of the King and his Laws, to the example of all 
others in the like case offending, and against the Peace, See. 

The Attorney GRNERAt., in his opening to the Jurv, «tated, ;hat ihcnuh 
this was a case which it was his duty as the Law Offirer of the Crown to brin^ 
bf-fore them, it had not originated with him : It was an Indictment which had 
be en laid before the Grand Jury at the former Term, by a O entlemnn* who then 

* Tuo>j&3 Wetjiore, Esquire. 



e 



VUl. 



APTENDIX. 



held ttie hi((h ofiicr, ((he Jutict of which h« wii k( th« prcteiit ditrhtrgind) 
•lid o( whote tiTvicet aini eminent (■lcri(« (he Crovrn and Country hid Lteeri 
drprived hy draih tince the Use kitiinjf of thi< Court : It h«d been in (he ordi- 
nary cour«e of that Gentleman'* doty ; and the (JrHnd Jury of the County 
bavinfT returned it a (rue h II, 'he prevent Uefenditnl John Laker was arrai^jned, 
and having pleaded Not Gudty, and iraverted the Indictment until the preienc 
Term, had now appeared to fake hii Triwl, and the Jury wrrc empannelled to 
try the i«»iie jnncd on (hut Tr:iver«e. The Defendant Jnhn Hiker itood in- 
dicted, together with Jnines IJ^con and ('hurlet StuiUoii, for having conspired 
and combintM], fiic(iou*ly aixl tcditioatly In mnleot and dittiirb the Peace and 
f>mmofi tranqnilliiy of the Province, to bring into hatred and contirrpt the| 
King'* (luvcrnment and I.h\v<, and to create fal^e opiniont and tuspicioni of 
aoij concerning i|i« Mujrkiy'k Uosul Powerar.d Prerogntive; and in purfuniica 
of thii conspiracy and cumhinaiion, had Committed certtin specific acti which 
are (rt fi>rth in the Indictmenr. The»e ore called ir. the language of the Laur 
ovcrl aclt, and proof of ihi-m or any of them mi^ht maniri^t the guilt of tiiu 
purty. That though the«c »c!f wire lo •pecilic.illy at-l forth, llu-y did not 
form the main point of •ifTi'iice. TH* -"S'l-f and material fact which (hey had 
10 try, wa* ivnriiti-r me Defendant Uaker did conspire vvidi Khcoii or S(ud«on, 
with inre'it to kuhvi-rt thr (i>»ornm»'nt of itn* Province, und t'' cxoite fcditioii 
and di«a(rection among Hi* Mijeniy'n aiilyrtta in the Mailawaska Settlement 
■o Calleil : and if any on« of the overt act* were proved, it would be tu(!icieiiC 
It support the charge, if the Jury were, froin the circumstance* iifcnding if, 
convinced of the intention of the Di-ieiidunii. The offci.re, u* iaid, amounted 
only 10 a Mittdemeanor, and wa* therefore punifhabic no farther than by a fni« 
and impri^oiiincni ; hut it wat one of ■ very i^criou* nature, and might be pro- 
ductive of (he most gr lVou* cunseqiience*. It tiiuck at the root of all aociety ; 
for if Individual* could be permitted to unite for the purpose cf subverting the 
Juiisdiclion, putting down iha Laws, and bunging the (iovernment into con- 
tempt, '.T'.ihout bring liable to punishment ; and could be juttiGed in to doing, 
because ihry took on ihemselvet to deny the authority of the Established 
Govetmnent 5 ail protection for life and property was taken awny. The inha- 
bitants were virtually outlawed, and made the prey of every maraiider who 
cume with fT'^.-rior force to their own. Had murder or any of the highest 
crimes bcc'i committed by tlie Defendants ; they might escape with impunity, 
M there could be no law by which they could be tiied, no tribunal before 
which they were compelled to answer. There could be no redress for private 
wrongs, no remedy for agreements broken, no recovery of debt* contracted j 
and (he wliole land, instead of being inhabited by an organized society, living 
under the blessings of a free Conititution, might shortly be overrun by thu 
outcasts of other countries, and the present poKSessors destroyed or driven out. 
Such would be the efl'ects of success in Conspiracies like the present. It wh-i 
not for hjm (the Attorney General) to anticipate the defence which might I 
■et up 0(1 the present occasion : but if the Defendant still persisted in his former 
declaratio.t, he would probably, ii'Stend of disproving, endeavour to justify the 
acts which he hail committed. The Defendant was, he believed, u native of 
(he United States, but it m a well known rule of Law, that an Alien being 
undiT the protection of a Government, was siihject to its Laws, and owed a 
local and temporary allegiance so long as he mijlit coniinue within it. Me 
(the Attorney General) understood the present Defendant justified his conduct 
on the ground of hii being in the Territory of the United State*. If the De- 
fendant could moke this appear, it might aflford him a good defence : or if he 
could make it appear that he came lo the Madawaska .Settlement, with the full 
intention to take up his residence on the Icrritoiy and within the allegiincc of 
ihut Government, and had settled, with the full conviction and belie' that he 
was withi:i those limits; although the offence would not be ther»'i>y purged 
unless it were f^und to be the case, stili his criiniiiulity would be much lessened, 
ant.' be would be more eutitied to miii^aiiun in any puniibnient which the 



APPENDIX. IX. 

Court would award him. As to the proof \vhi«h he (tlie Attorney General) 
should bring before them in support of his charge; he thought not only one, 
but all the overt acts would be proved, and the criminal intention of the party- 
most clearly established, by this and other circumsiniicea which would come 
out in evidence. The place where the oft'ence is charged to have been com- 
mitted is the Madawaska settlement, so called, in the Parish of Kent, in the 
County of York ; and it would appear that the inhabitants Itnve ever since the 
first erection of the Province considered themselves British subjects, and 
under its Government j that they have always received the protection 
and been amenable to the provisions of the laws here in force; that ihey 
have been enrolled in the Militia, have voted at Elections, and were therefore 
represented in the Provincial Assembly; and, in fact, exercised all the same 
privileges as the other people of the Province; that Peace Officers had been 
appointed there. Magistrates issued their M-'arrants, and the Processes of the 
Courts of Justice had been served throughout the whole Madawaska settle- 
ment, in the same manner as in any other part of the country, until lately, 
without any interference or obstruction whatever. It would be proved also, that 
this very defendant had considered himself living in this Province ; had derived 
protection from the Laws; had in several cases himself appl-ed to Mr. Justice 
Morehouse for summonses against persons within the settlement, from whom 
lie claimed debts, and was thereby enabled to collect them ; and it did not lie 
with him to deny the obligation of that law, from which he derived aid and 
protection. He not only, then, enjoyed the benefit of the Institutions which 
he was endeavouring to destroy, but had even received from the Revenue of 
the Province, a bounty which the Legislature have bestowed for grain raised 
on new land within the same; the land on which he raised it being the same 
where he has now hoisted the flag of the United States, and set at deGance tha 
Laws of the land. It was no question for them or this Court to determine 
\vhat might eventually be the fate of this country ; no decision of theirs could 
alter or affect the question. There was no doubt it had been claimed by the 
Unitt'd States, and that claim resisted by Great Britain; and the two Govern- 
ments had agreed upon a mode of settling the dispute. This depended on 
the true construction of a Treaty entered into between Great Britain and the 
United States; but it would be monstrous to suppose that upon the claim 
being trade, the country was to be withdrawn from the sovereignty of the 
British Crown, and remain without the protection of any Law, or delivered 
over to the claimant until rhe right was ascertained. Should it be decided 
that this claim shall prevail, there was no doubt the decision would be met by 
Great Britain with the same spiiit that has always actuated her conduct, in 
the observance of Treaties; but at present nothing was decided. This coun- 
try was once clearly under the Government of the Crown, and had continued 
so, uninterruptedly, ever since ; and after the erection of this Province, was 
luider its Government; and tliere was no act whatever, by which the relative 
Ftate of the parties could as yet be altered or affected. Indeed it was necessary 
for the interest of both parties that some jurisdiction should be e.xercised, as 
without it the Territory could not be preserved. A degree of imaginary 
importance had been given to this case, by the defendant's having 
been dignified by a high title to which he had no pretension ; and set himself 
up as the Agent of, and acting under the authority of, a foreign Government; 
which was not the fact : whatever he and others might have done, was in their 
individual capacities, and on their own responsibility. The Attorney General 
then stated to the Jury, that a great deal had been said, a great deal writter;, 
and a great deal printed on the present business, but this could have no weight; 
whatever; and the Jury must disntjiss it altogether from their minds. It was 
the great principle of our Laws, the exercise of which we are now vindicating, 
that every person is presumed innocent until proved guilty ; and this proof 
could only be by evidence given in his presence before the Jury who are to 
decide on his case. The Jury must, therefore, consider nothing whatever hue 

2 



X. APPKMJIX. 

the ftctt which fni){bt be pioveJ before (hem (hi» day. If, after heariiif; ihe 
evidence, thry could nut in iheir comc-ienre* say whether ibey wereiatikried of 
the guilt of the defendant, he would be entitled to iic(]uiitai : hut if the ollonce, 
M alleged in the Indictment, wa< proved, they would fenrleMly di<chHr|;c theit 
duly, by pronouncing him guilty- The Attorney (leiioral then read tome 
•uihoriti4>* on the generikl nature of the churjje, and the proof necessary to 
aupport It, and proceeded to call (he wicneatcf. 

George Morchoute was the 6rtt witness sworn : his p»idenie was as fol- 
lows : — I i»m a Justice of the Penn- for the Cnunty of York. I reside in the 
Parish of Kent, on the lliver St John, about 3U miles below the (irand Falls. 
The Mada*a*ka settlers commence a few miles above the Falls, and 
extend up 40 or 30 miks. I have been settled where I now live six years ; 
but my acquaintance with the Madawatka settlement commenced in 1819. — 
At this lim« the inhabitants were pniinpally French. There were a f*w 
American ritirens. I cannot aay whether defendant was there then. Ilia 
brother Nathan was. I do not recollect the defendant's being theie until 
September, I82-2. He and the other Americans had formed a lumbering 
cktdhlithment at the head of the Madawaska Ecttlemeni, on the cast side of thu 
River St. John, by the Meriumpticook stream. That part of the country 
where the French and Americans were, has been invariably under the juris- 
diction and Laws of this Province since I knew it. I have been in the con- 
stant habit, as a Magistrate, of sending my Writs imd Warrants there. No 
interruption or ohjeciion was made to the service of them until last August. 
Until then it was my belief that all the inhabitants there considered (hem- 
selves undtT the jurisdiction of, and sul'joct to the Laws of this Province, both 
American citizens and the Fremh seliiers. When I speak of last August, I 
mean, that ibis was the first intimation I had of any objection being made (o 
the exercise of the jurisdiction of (hii> Province (here. That intimation waa 
made by o Report or communication from Mr. Rice, that John Uakcr, the 
defendant, had bicn gnilty of seditious practices. I forwarded this communi- 
cation to the Secretary of the Province. A few days after, about the 3d of 
August, I received written instructions from His Miijesty's Attorney General, 
to proceed to Mndawanka and take depositions ; and get a copy of the written 
paper which it was reported thu defendant had handed aliuut for signature. 
I proceeded accordingly to Maduwuska on the 7th of August, and arrived at 
the place where Raker's house is situate, and went into (he house of James 
Riicoii, and a«ked him to let me see the paper that had been handed about for 
signature. He said he had it not. 1 then requested Bacon to go with cue to 
Maker's, to look for the paper. Ilf dcclincil going. I then went toward 
Raker's house, and met him on his mill dam. The mill dam is made across the 
River Meriumpticook. I stated to him that it had been reported to Ciovernmenr, 
that he and other American ritizens residing there, had b.;en guilty of seditious 
practices; that I was authorised to make inquiry. I told him it was reported 
that he had drawn up and circulated among the settlers, a paper, the purport 
of which was, that they were American Citizens, and had bound themselves 
to resist the execution of the Lhws of (ireat Britain. He ntilher admit(ed 
or denied it, but said that he had been charged with an attempt to stop the 
Mail, which he said was false. 1 requested him to shew me the paper which 
had been handed round for sigRature. He said he believed it was not in his 
possession. He did not deny the existence of such a paper. He said he did 
not know whether it was in his possession or not. He thought Studson had 
it. I requested him to go to his house and search his papers, perhaps he 
wighl find it. We proceeded together towards his house. Between his resi- 
dence and the mill there is « r.ew house, where ten or twelve Americans 
were assembled. I did not know them to be Americans, but supposed them 
to be so. They were not French settlers. When we got there Baker took 
two or three aside and consulted with them a few minutes. He then came 
back uhJ said to uie " Mi Moiehoui'.-, I have consulted with the Commitleei 



APPENDtX. XJ. 

^* and we have determined that you shall not see this paper. We have formcr- 
" ly sliewn you papers in similar cases, which has been very prejudicial to us." 
— I observed when I went there, a flag staflT erected on the point of land where 
Baker lives. The point is formed by the jimction of the Meriumpticook River 
with the Saint John. There was then no flag' on it : but after coming out of 
Bacon's, I observed a flag hoisted. A white flag with an American Eagle an<l 
semi-circle of Stars red. In the conversation I had with Bacon, he deprecated 
Baker's practices, and said he would not desist until he brought the Americans 
there into trouble. I think the persons Baker took aside to consult with, 
were Bartlett and Savage. After I received the answer before mentioned, I 
pointed to the flag and asked Baker what that was ? He said " the American 
flag. Mr. Morehouse, did you never see it before ? If not, you can see it 
now." I asked him who placed it there." Bacon was present at the time. 
I requested him, in His Majesty's name, to pull it down. He said " No, I will 
" not: We have placed it there, and we are determined we will support it, and 
" nothing but a superior force to ourselves shall take it down. We are on 
" American Territory; Great Britain has no jurisdiction here; What we are 
" doing we will be supported in ; We have a right to be protected, and will 
" be protected in what we are doing, by cur Government." He did not pro- 
duce or exhibit any authority. I then turned to Bacon and said, " Bacon, 
"you have heard Bdker's declaration; Do you mean to support him in 
" it ?" He said " Of course I do." I then left them and came away. Baker, 
about the first of February, 1825, applied to me, as a Magistrate, for sum- 
monses against some of the Madawaska settlers, to collect debts. I gave him 
six summonses against persons all living in the Madawaska settlement. 
The return made to me was, that the debts were paid when the writs were 
served. Baker has a considerable improvement and raises more or less grain 
every year. In the year 1823, I was at the place where he resides. I never 
knew of his cultivating any other place in the Province. I understood from 
what passed, that Baker and Bacon both acknowledged they had signed the 
paper. They spoke of having bound themselves by a written agreement to 
resist the Laws of England. 

The direct examination being closed, the Defendant was informed he might 
cross-question the witness. He declined doing so, saying, under the circum- 
stances in which he stood there, he did not intend asking any questions. The 
Court then said he must consider himself on his Trial ; and if he did not choose 
to avail himself of the right which every defendant had of crcss-e.xamining the 
witnesses, it was his own fault; Baker then said he fully understood this, but 
should follow the course he had stated. 

To questions then put by the Court, the v.'itness stated : — The Madawaska 
settlement proper terminates at the Madawaska River, there are a few miles 
interval with a few scattering houses. The main aettlement then commences 
about nine miles above the Madawaska, and extends 7 or 8 miles. The Meri- 
umpticook isabout 18 miles above the Madawaska. This settlement has for- 
merly gone by the name of Chateaugay ; latterly it has been called St. Emelie 
by the French settlers in the settlement. 1 mean distinctly that the upper 
as well as lower settlement has been subject to the British Laws. It is at the 
head of the settlement the Americans reside. The whole settlement has 
gone by the general name of the Madawaska settlement throughout the conn- 
try. The name Chateaugay caused some differences among themselves. The 
Priest changed it to St. Emelie. There has been no distinction in the actual 
exercise of jurisdiction between the upper and lower part of this settlement. 
The lower bound of the Parish of Kent is 18 miles below my residence. 

Francis Rice sworn. I reside in the Madawaska settlement, at the head' 
of the first part. I am Adjutant of the 4th Battalion York County Militia. 
The Madawaska settlers are enrolled in this Battalion. I have been in the 
Court and heard Mr. Morehouse's evidence. I made a Report to him as he 
has stated, I did not know the facts cny?clf, they were reported to me. I 



XII. APPKNDIX. 

iiccomp»iiieJ Mr. Morrlioii«e oh hi* ritit to the ••lilement on the 7th of Am- 
|;u»t la%r, ami wai pretrnt nt the converiitiunt with Hiker and Uaron. I'he 
f^cti all took place at lie hat stared. I can *ay nothing more. The Mnda- 
waika settler* att<>nd aiid turn out at the Militia training pretty regularly, both 
above and below the confluence of the Madawa«ka. 

The French aettleri not bein(f »blf to speak Knplish distinctly, the witness 
Franci* Hice had previously been iworii as Iiilei |'ri.'.er, and acted as such 
throu(;hout the Trial. 

Abraham Chamberlain sworn. I live in the upper part of the Madawkaka 
•cttlemenr, above the Madaua^kn Iliver. Have residi-d there four years thit 
summer. Was born at the I3jy Chaleur, cnme from th«'iirc to the Mtdawaska 
four year* ngo, and have always lived since in the Maduwuska sctllcment. 
Charirt Studson preiented me a paper I think in July last. 1 don't remember 
sre:r|{ Haker. Huron arid Ami'ry,nnd some other Americiins were present. [ 
was pastinjf by. When they hanJid rue the paper, I asked if uiiy of the Fnnch 
had sif^ned it, they said not ytt . 

The witness beinu then asked as lo the contents of the piprr, atui the pro- 
priety of such evidence being qiie»tinned by the Court, the Attorney (leneral 
cited the case of Rex vt. Hunt and others, ti liarn and Aid. 30G, where it 
was decided in a trial for Conspiracy, thot secondary evidence of the contents 
uf a paper which was in the defendant'* possession, was admissible, without 
prnducififir the orif^inal, or ((ivini; notice to produce it ; and ihut parol evidence 
of inscr:piions and devices on banncis and ^Agt is oi^io adniisiiible. 

The question was then put, but the witness could *ny nothin|; at to iht 
cnriteni*, srnlinfr thst it was read to him, but being in Rnclish he did not 
understand it. They asked him to sign ; but he did not undcriitund fur what 
rerson. lie wnnlcd lo know sthetliir any of the French had I'jjned if. Thi* 
took {ilnce on the point of land near the m:il. There was a llsi; hoisted with 
an Ea({le and Stars on it. They did not say any thing about having signed the 
paper themielfcs. 

I'clcr Marque sworn. I live in the Sf. Emelie ictllemcnt, the tipper one. 
Ainery, Dacon, and StuJson, some time latt summer, I cant say whut part of 
ir, tried to muke me sign a paper. This wns at the pljcc where the pole 
ktands. I never understood the purpose lor wliu'h I was called to sign the 
paper. I worked eleven days for Duker last year nt tlic time of gittin^r hoy. — 
They told me Chamberlain had signed the p ipcr. I don't remember any more. 

Peter Silitte sworn. I was employed last summer to carry the Mail from 
Madawaska to Lnke Timiscouta. A^ I wns taking it up the Uiver, polling in 
n canoe, I met John linker coming down the River on a rufr. Uuker asked 
me in English" Do you carry the Mail?" I said. Yes. He said ho huii 
orders from America not to let the Mail pass that way. I replied that I had 
no ordeis to stop there. This was all that passed. Thi? was I think in July. 

Joseph Saufaton sworn. I lire in the Madawaska, half a mile below the 
dreen River. The Gieen River is below the Madawaska. I was iiorn uC 
Maduwaska. I bought land from Joseph Sonci. Me had a grant from tlic 
(lovcrnment of this Province. I bought it six years ago. I hare been a 
Constable for two years for the Parish of Kent. I was olistructed in my duty 
of Constable by Bukcr, Racon, Rartlctt, Savage, Sthorley, and Jones. I had 
an execution from Mr. Morehouse against James Ducon. I abked Bacon if be 
would come, he said he would not leave the place. Baker said, it is of no use 
fur you to go there, you shall not have the man. Bacon talked about settling 
if. Baker said " Bacon you mu = t not settle it now, you must settle it another 
" lime. I will not allow any ofliccr to go up there." He asked me if I had 
any authority to go there. I showed him the warrant. He said if it came 
from the States he would mind it, but it was only from Mr. Morehouse, an.! 
he would not mind if. They prevented my taking Bacon, who refused to 
go. This took place near Baker's mill. 

Edward Miller, Esq. sworn. I am High SherifTof the County of York. 
! have been so since 181 1. I have beenacquninicd with the Madawaska settle- 



APPENDIX. XIU. 

inpiit seven yeni'-. I never could make any division in the lettlement between 
tho upper and lower. When I first knew it, it extended to seven miles from 
the Fulls. Lately it has conae within 3 or 4 miles. I know the Meriumpti- 
cook River. I have been in the habit of serving writs throughout the whole 
of the settlement, the same as in any other part of my bailiwick. When I 
first became acquainted with the settlemenr, 1 considered the inhabitants as 
under the jurisdiction and Government of this Prpvince, without any dispute 
whatever. The distance is so great 1 have never summoned them to attend 
as Jurors. It would be so inconvenient to attend. The inhabitants serve in 
Militia. I never met with any obstruction in the dischage of my duty. 

Peter Fraser, Esq. sworn. I have been an inhabitant of this Province since 
1734. I am acquainted with the Madawaska settlement. It is about 7 or 
8 years since I was first there, but I have been acquainted with the settlers 
since 1787. I considered them always under the Government of the Province. 
The first settler I knew was Captain Duperre, a Captain of the Militia of 
this Province. The date of Iiis commission was between 1787 and 1790. He 
resided at ths settlement. The setliers have voted at Elections. There was 
some dilliculty at first in their doin^ so, on account of the oath which was re- 
quired to be taken, as they were Catholics j but when this was altered, they 
voted without difficulty. To my own knowledge they voted in 1809, and ever 
f.ince. I considered the Madawaska settlement as extending from the Great 
Falls to the Canada line. I have been where Baker lives, and always deemed 
the part above Madawaska River as in the Madawaska settlement. There is 
no distinction in this respect hetween what is above and below that river. The 
Madawaska settlers are enrolled in the Militia of this Province. In Captain 
Diiperre's lime there were two Companies. In 18'24 they were formed into 
a separate Battalion, consisting of five Companies. I am the Major of the 
Battalion. They turn out very regularly, I never heard them make any ob- 
jection to training, 

Htnrt/ G. Cbjtper sworn. I am Clerk of the Peace and Register of Deeds 
for the County. I was appointed Clerk in 1823, snd Register in 1820. I 
succeeded my father in both ofliocs. I have discharged the duties since 1820, 
having acted for him before receiving the appointment myself. Parish Officers 
were appointed by the Sessions for the Parish of Kent. There was a separate 
list for the JMadawiiska District in that Parish. I have been as far up the 
river as ten miles above the Grand Falls. There are a great many Deeds re- 
gistered in my office, of lands in Madawaska, v\here the parties are the Ma- 
dawaska setliers; some as long since as 25 or 30 years back. As Clerk of the 
Peace, I received the money given as bounty for Grain raised on new land in 
this County. In May, 182j, the defendant John Baker applied to me for the 
bounty for Grain raised by him on new land ; he received the bounty from 
me. The paper now produced by me, is the document under which he be- 
came entitled to it. I observed to him that lie was an alien, and I was not 
aware whether he was strictly entitled to it. lie said his certificate had passed 
the Sessions. The paper I now hold is the certificate, and the only one. k 
has been on file in my office since. The pajjer was here put in, and read by the 
Clerk of the Crosvn, and is as follows: 

" I, Jolin Haker, of ICcnt, do swpnr, thrit ninety Biishi'ls of Wheat were really nnd 
" truly rHi-eti mi the land ociMipicii liy mo, nnd iire artiially of the Crop of the year 182:1 
" [18JJ] and that the uood ivas eiit dun-ii, hiinit of cli'iired otffrom the land on which tho 
" sauip w.-ii raised, within tivo years previous to the time that tho said erop was taken off; 
" aiKi that they were of the first'and only erop of (Jraiu niisud oQ land from wlu !i the wood 
" was so cut down, burnt or cleared off as aforesaid. 

JOHN CAKER." 

Sworn before me at Woodstock, 2d July, 1R23. 

JOHN BEDELL, Justice of the Peace. 

' I verily believe the facts above stated to be just nnd true.' 

JOHN BEDELL, 7. P. 

I paid him by a check on ls\x. Necdham — the amount was £4 os. 3d. 
This is the order I gave Mr. Needhain. 



XIV. APPKNDIX. 

CroU'eramined by the Drfendanl. — H«re you got the rrcf ipt I gave joo 
for (he monry ? The wiine«« hrre produced tiie schedule and lignaiure to it 
by Raker; and said tbii it the only receipt he gave ine, except the one given 
to .Mr. .Nreilhdm. 

Mark XeedAam sworn. I remi^mber the circumitance ofpayini; (hit order. 
The wordt ' received payment,' on it, are in my writing;. I have no doubt I 
paid it; but hive not now any recollection of (he defendnitt. I coiitidcred ic 
paid, and charged Mr. Clopper with it. 

George J. Dthblce iworn. I am acquainted with the hand writiilf; of the 
defendant John Baker. I have teen him write. The tignature to (he receipt 
On ilic order it hit hand writing;. I have no doubt of it. 

Stmon Abcar OT Iltbcrl, twoin. I live two miiet below Modawntka River. 
Have lived there 40 yeart next month. I moved there from the French Vil- 
lage, about ten milet above Fredericton. I have a grant of my land from this 
Province. It it the Crtt %t^m in the Madawatka ; and was made about two 
or three years af'.rr I moved up. I live under ihii Government, ond huve 
alwayi lived under it. All the NIadawatka lettlert live under the same Go- 
vernment. I rote at Elections. — The firtt time was about eight yeart ago. 
Baker came lait year to my hoiite, and a^ked me what time I go to train my 
Company. I am a (^aptain of Mihtia. lie said there is not much occasion to 
train at Madajvaika. I enquired the reason. He said nothing. I told him 
I would go next Saturday ; he must be stronger than roe to prevent me. I 
know where Baker lives, lie came fire or six years ago. lie has sUvnys 
lived at the same place. Raised grain there. I believe he cultivnled eio where 
else. Baker said " I had better not (rain," but did not ask me not to train. 

Georf^e li'esl sworn. I know the defendant Baker. Have known him 
•inre I8'J0, he wai then settled at the Bay Clialeur. I saw him next nt the 
Madawaoka. It was when Judge Bli»< was President. I l>eiievc in 1824. 
I seized three hundred logs from him. I was (hen a seizing officer. He said 
he wished to become a British subject, as he had been here the necessary 
time. He enquired of me whst steps it would be necessary for him to take. 
I told him as far as my information went. This wus at the place where he 
lives. It is called Baker's Mill Stream. He spoke as if he considered himself 
■ resident within this Province, and wished to have all the lenity shown him 
on that account. It was shewn him. He was allowed (o redeem (he logs nt 
the rote of 28. Gd. per thousand feet, counting three logs to a thousand. The 
logs were seized os cut on Crown Lands without a license. I have seen him 
•ince. There was a Warrant of Survey sent to ntc, to execute of (his land where 
Baker resides. It was in Samuel Nevcrs' name. Baker himself attended the 
execution of the warrant, and directed the course of the lines. The privilege 
was considered Baker's, but token in Nevers' name, as Baker was not a Biitish 
•abject. I think (bis was abou( two years ago. 

The evidence on the part of the prosecution having here closed ; the defen- 
dant wos called upon for his defence. He addressed the Court nearly as fol- 
lows : — 

I am a citizen of the United States, and owe nllegiancc to that country. 
1 have lately received my Deed from the States of Maine and Massachusetts. 
I bold myself bound to their Courts. I live in American Territory, and hold 
myself only liable to (he Courts of (hat place, being (he Couniy of Fcnobpcot 
in the State of ."Maine. I enter on no defence, and call no evidence. I do 
decline the jurisdiction of this Court. 

The Defendant alluded to a letter he had in the course of (he (rial handed 
to the Chief Justice, which was delivered to him; and he was informed he 
ruight, if he chose, read it as part of his defence, but he declined doing so. 

The Attorney General then addressed the Court and said; that as he had in 
his opening stoted generally the nature of the case and evidence ; and the De- 
fendiini had not made any defence; ho did not think it necessary, after so much 



APPENDIX. XV, 

timeliad been taken up, and the evidence so fully gone into, to address the 
Jury; but would merely read two or three authorities (which he did from 
Starkie's Evidence, Comyn's Digest, Blackstone's Commentaries, and Arch- 
boid's Ciim. Pleadings,) and then leave the case in the hands of the Court. 

Mr. Justice Chipman charged the Jury. He Sjegan by stating the Indict* 
ment and Plea, the general nature of the offence, and the proofs requisite to 
support the charge. He stated that the body of the offence was the conspi- 
racy, llie combir;ing and confederating toge{i.er with the intent laid in the In- 
dictment. In the present case, the intent charged, was to bring into coniernpt thtt 
King's authority, to spread false opiiiions among his Majesty's sul>jecto as to his 
power and prerogative over them, and, in fact, completely to unsettle tlieic 
minds as to their allegiance to the Government under which they lived. This 
mind and intention must be made manifest by overt acts. It was usual, though 
held not to be absolutely necessary, to set forth overt acts in the Indictment, 
but if from the facts proved in evidence, the Jury should be satisded that the 
defendant Baker, now on trial, did combine and confederate with one or both 
of the other defendants named in the Indictment, with the intent imputed to 
them, that would be sufficient to make up the ( "ance. Ar the essence of the 
crime was the combining, two persons at the least must be engaged in it. 
The Judge then stated that before going into a consideration of the evidence, 
he would dispose of the ground which the defendant hati set up, wh°n called 
on for his defence; which was that the place where the acts were co.iimitted 
was in the Territory of the United States, and that he, "he (iti>>^T\i]-i>it, wfc.s 
not amenable to the Laws, or subject to the jurisdiction of the Courts of this 
Province. The Judge then stated that the question as to the nation.!' right 
to this Territory, now well known to be in controversy, is one which tiiis 
Court is utterly incompetent to enter into, and can have nothing to do with. 
It is a matter of State to be settled between the two Nations, Great Britain 
and the United States, to be dealt with by the Governments of the two Coun- 
tries, atid not by this Court. This Court will only inquire whether the place 
in question is actually in the possession, and under the jurisdiction and Laws 
of this Province; and if so, the Court will maintain that jurisdiction, and 
continue the exercise and protection of those Laws, until some Act of the 
King's Government shall effect a change. There can be no stronger evidence 
of the possession of country than the free and uncontrolled exercise of a juris- 
diction within it ; and the Court is bound by its allegiance to the Crown, and 
its duty to the King's subjects, to act upon this, which it considers as the 
only principle truly applicable to the case. This principle has already been 
acted upon in this Province. 

The learned Judge then referred to the case of the sloop Falmouth, adjudged 
in the Court of Vice-Admiralty of this Province many years ago, [I8UG]. 
He stated this to have been the case of a seizure by a British Officer, of an 
American vessel lying in the waters of Pussamaquoddy Bay, for lading h^r cargo 
within this Province; no foreign vessel at that time being admissible into ifie 
ports of these Colonies. The Counsel for the prosecution in that case went 
at large into tlie question of right to all the Islands in that Biiy. undei the pro« 
visions of the Treaty of 178.3; and contended, that by virtue of the Treaty, 
all these Islands, including Moose, Dudley, and Frederick Islands, then in the 
actual possession of the United States, of right belonged to Great Britain; 
and that no foreign vessel could lawfully lade a cargo in any part of that B.iy. 
But the learned Judge of that Court at that time, now one of the Judges of 
this Court, (Mr. Justice Botsford,) in pronouncing judgment, would not enter 
into the question of right to th2 Islands, which he considered a matttr of State 
for the two Governments to decide upon ; but finding the three Islands before 
named to be under the actual possession and jurisdiction of the United Stales, 
he applied the principle of the law of Nations, applicable to a Water Boundary 
between two different Countries, and directed his attention solely to the point, 



XVi. APPENDIX. 

— \Vhf(her (he vcisei la>leJ her ctr^o on the Uiiciih lid* of > tniilJIe liiitf 
drawn between theie Itlatid*, thus in the poiieftion of llie I'uited Slatet, 
and the Hritith Inland* opposite. It thut appenrt that rhia doririnc of lakinK 
the actual Hate of lhir>{{s as we fitid-xhim, and applyins the luw accordingly, 
has been already acted upon in ihi« Provinci*, in an instance where it was 
favourable to (Citizens of the United Stales ; and the Court !>«« no henitatinn 
in Bpplyin({ the same doctrine, which it considers the true doctrine, to the 
present case. It is to be obserreil, that the dtfenrlant, in the prenent cast-, 
has given no evidence whatever of the place in question bL-ing in the posse^- 
aion or under the jurisdiction of the United Slater; that he does not appear 
to be in any respect an Agent of tli«t Government, or acting utiderils autliori* 
ly ; and that what has been done mu<t be considered as hrin^r oltogelher the 
acts of unauthorized individuils. The place where the irniisuciion occurred, 
ffoes by the general name of the Madawaska settlement ; and if this seitle- 
roent shall appear to be, in point of fact, under the jurisdiction nf this Province, 
the case must receive the same consi'ieration, and the conduct of the defendHnt 
be viewed in the same light, as if the nets complained nf had boin commiiied 
in any other part of the Province, one hundred miles further down on the Uivec 
St John, or even in this town of Kredeiicton. 

The learnt-d Judge then proceeded to read over the whole of the testimony 
from his notes, commenting upon the scverHl par:* nf it as he went on. Ha 
considered the overt acts as to hoittiig the FIh); of the United Sttlet), with 
the express intention of aubrctting Uriiisili authority, as most distinctly and 
fully proved, and asked what more unequivocal iridiration there could be, of 
an intention to bring the King's (lovcrnmcni into cnnlempr, nnd of unsetllinjf 
the administration of the Laws of the Province, than the ereclirjj of a foreign 
Standard with this dtciartd purpo»i-. NV ih respirt to ilia trun^iriion with 
the Postman, he directed the Jury, that if they considered the act of the defen- 
dant in this instanrc to have proceeded from the combinmion and confederacy 
to subvert the King's authority, the defendant was properly cimrgcd wiilt 
them under this Indictment; fcnd thnt in forming their judgment of this and 
all the other fact<i detailed in evidence, they should take into view all the 
coincidences of time, of place, and of action, in determining the ch iriicter of 
the several transactions. With respect to the written agreement by whirh 
they bound themselves to resist the Hritish Laws, he tho<ii.'ht that was sulli- 
ciently proved with ref^ard to the American citizens; but it was not made 
out in proof thai this was the saroe paper which was handed to the French 
aeitlers. But the learned Judge raid that he could not admit of any distinction 
in this respect between aliens being under the jurisdiction and protection of 
the British Laws, and natural born siibjecls. Tlie former owe n local allegiance, 
and what would be a breach of the Laws by the one, would be equally so by 
the other. 

The learned Judge, in closing, stated, that if in detcrmininjr the present 
case, this Court was undertaking to enter upon a question of a conflict of rights 
between the two natifins, it mi;jbt be diiposed to approach it with a degree of 
trepidation. But this case was ahoirether unembarrassed by any such consi- 
derations. It presented a chain of evidence of clear possession and undistufbed 
ed jurisdiction on the part of this Province, from the period of ite 6rRt erection 
to the present time ; a spare of more than forty years. One of the oldest 
inhabitants in the Madawaska settlement had proved that he removed thither 
from the lower part of this Province, forty years ago; that he and all the set- 
tlers there, always considered themselves as living under this Government, 
It is also proved that these inhabitants have received grants of land from this 
Government; and have from the becinning been enrolled in the Militia; thnt 
they have voted at Elections for the County of Voik ; have applied to the I'lo- 
vinciul Courts for rediess in all suits at Law ; ond have uniformly exer- 
cised all the privileges, and been subfct to ail the duties of other inha- 
bitants of the Province; excepting only that the SberilT stales, that he 



APPENDIX. XVll. 

{las not Bummoned tliem to nttend on Juries at Fredeticton, liy reason of 
tlieir great distance ; but he expressly declares that he has alwnys been in the 
habit of serving writs throughout the whole of that settlement, as much as in 
any other part of his bailiwick. It appears also, that the defendant Baker consi- 
dered himself as livinp^ within the territory, and under the jurisdiction of this 
Province; that he applied to Mr. Morehouse, the provincial Magistrate, for 
processes to recover his debts from inhabitants in the Madawaska settlement; 
that he received the provincial bounty for grain raised on new land, which fliere 
ran be no question is the land on which he now resides; and this on his own afllda- 
vit, stating himself to be .John Baker, of the parish of Kent. It further appears 
that he attended a provincial Surveyor iu laying out tiiis very land, for which 
n warrant of survey, under the authority of the Province, was in a course of 
execution ; giving directions as to the course of the lines, the grant being in- 
tended for the benefit of Baker, although it was to be taken in the name (if 
Nevers, a British subject. Baker himself also had an intention of being 
naturalized, and stated to one of the witnesses, Mr. George West, that he had 
resided the necessary time, and wished to know what other steps were neces- 
sary for this purpose ; this conversation taking place on the spot where he lived, 
at the head of tlie Madawaska settlement, and at a time when logs cut by him 
had been seized as being cut on crown lands without license, and Baker claimed 
to be dealt favourably with by reason of his residence within the Province, 
and liis intention to become naturalized. The learned Judge also stated, that 
it appeared from the evidence, that there was no line of division to be drawn 
between any parts of that whole settlement, as to the possession and exercise 
of jurisdiction by this Province ; that he could not imagine any principle upon 
which any sucli line of division could be made ; that one of the witnesses spoke 
of the settlement having, when he first knew it, commenced seven miles above 
the Great Falls ; that it had since extended downwards to within two or three 
miles of these Falls. It had also been gradually extending upwards, and all the 
inhabitants in every part of it were equally under the jurisdiction of this Pro- 
vince, and entitled to the benefit and protection of its laws: and if they were 
to be transferred from this jurisdiction and protection, it must be by some act 
of the King's Government, competent for that purpose. 

The learned Judge with these observations left the case to the Jury, directingf 
them to consider it in the same light, and to give the defendant the benefit of 
the same considerations that they would in the case of any other inhabitant of 
the Province. 

The Jury then retired from the box; and after about an hour's deliberation, 
returned into Court with a Verdict of GUILTY. 

The Defendant was then required to enter into recognizance to appear on 
Monday next, to receive the Sentence of the Court. The same bail was 
accepted as before, in the same amount. 

The Attorney General stated to the Court, that he should enter a nolle 
prosequi, on the ex-officio information which liad been filed against the defen- 
dant ; and also on the Indictment which had been found against John Baker 
and six others, for a riot ; so far as regarded the present defendant. 

The witnesses were informed their further attendance would not be required. 

Klonday, IStli May, 1838. 

The Defendant, JOHN BAKER, appearing to receive Sentence, the 
Attorney Gknerai, addressed the Court ns follows : 

Jflay it pjease \''our Mottofs ; 

John Baker, the defendant at the bar, having been indicted and found 
guilty of a conspiracy to excite sedition and disaffection to the Government of 
this Province, to resist the execution of the Laws, and to bring into contempt 
the Royal Power and Prerogative within the Territory lying near the Mada- 
waska River, under the actual Sovereignty of His Majesty, and within the 
jurisdiction of this Court; it is my imperative duty to move that judgment 
may be passed upon him for this offence. 

3 



tVllI. APPKNDfX. 

I( it not try aim, in any thini; I may addrr** to your fTonori, (o rail for anv 
afvt-rer punijlimt-iit than the Court rnay tietm abioluirly rirrr»»Hry. Imiffil it 
i* rnihir with a contrary inlfntion I have tiow riim. '1 hut ihe defindarit 
•liould be punished it nrrratary ; hit oflTrnre rrquirt-a it; he nmy aUo be rauitht 
»ul>jrrrioii to the la\ri under which he liifniieif has tnugi)t and found prolrction 
■lid relief, »o loop at he rrmoink within their rrarli. It it further necetiRry, 
that the othcrt of whom he appear* leader, may learn from this example, thsi 
tliey will not he permitted, wiih impunity, to het themsclvet in array against 
the OoTernmrnt ; but more than all, it is requitiie to latiify the proceablr aiid 
lioneit tetilcn at the Madawa»ka that tl.ey will be protected in thcii per«oirt 
and properl'et, to long at ilit Majetiy acknuvvltdges (hem a* iiihjccti ntidint 
within hit dnminiont. 

The dtfendaril mutt hare undertland"njf «iiflicient In tec wlinf conteqHriicet 
tkil! ineviiabiv follo\T from acti tuch as have been proved acnin^C him, nnlett 
rhecked in time. He cannot, indeed 1 think no person, nf whatever country 
lie may be, could entenain a doobi of the propriety of the verdiri : the evi- 
dence wai irretitdble, and the full consciou«neti of what ihii would be, liat, I 
conceive, influenced the defendant in the cour«c he hat adopted : he denied the 
juiiidiction of the (.'ourt which he knew muH convict him. 

He attrrit, however, that to acknowle(t|;e it, would he contrary to iha 
allegiance he owet to the United Statrt, and the 'J'errifory whtre the acit were 
done, to be within the jurisdiction of the count of Maine. 

That there may noi he the tl'ghtett mitappreheniinn of the principlet on 
which ihit proteiution it conducted, 1 distinctly admit, that for whatever 
crime he mav have committed in Hiiy place nnder the juritdiclion and loverrignty 
c>f the United fciaict, the defendant cannot lie called to account here; noi 
lliough it were a personal injury of the hi^heiil nature done to a Krilith aiib- 
ject ; not thoufjh he himtelf were ■ Rritish tuhject ; neither, indeed, had he 
perpetrated the crime here and etraped thither, could he he arretted and brought 
back bv any authority of ihit Provincp ; when once within the limits of therr 
juritdiction, he is tafe from nil power but thcirt. If thv acta were committed 
out of (hit jurisdiction, it i« mutter of defence on the trial, of which a defendant 
may avail himself without being involved in any difficulty at to his allegiance. 
This question may arise in every country, but evidence such at was given in 
this case, can never be made null by the mere protestation of the nccused. 1 
did not, it it true, lay before thii Court the treaties between (ireat liiituin and 
the United Sta'et ; and call on your honors to murk the houndury on the map ; 
this is not the tribunal before which the parties have come to have this adjuat* 
ed, and by whose decision they aeree to be bound. Hut I did bring forward 
many wiinesses of unexceptionable character, from their tituationt most cog- 
nizant of the f jctt, who proved an uninterrupted exclusive exercise of sovereignly 
■nd jurisiliction over the .Mtdjwaska settlement. 

The United States claim ihc territory, but it hat never actually been 
withdrawn from the King't dominion; the claim is resitierl : each government 
asserts iti right, ind each admits the possibility of a decision adverse to its 
claim. It is submitted to a third Power; who certainly will not be influenced 
liy any unauthorized act of either party, in determining the meaning of a treaty, 
nearly half a century old, refirring to the natural features of the country. 
While this is pending, are both governments to exercise n concurrent jurisdic- 
tion over the territory? oris there to be none ? or is it to be that of the 
United Slates ? If the first is the correct lule, we should still claim the right 
to punish ofl'ences, particularly such as were calculated to oust our jurisdiction 
altogether: but the idea of two distinct sovereignties, one Monarchical, the 
other Republican : two sets of laws, one administered at Fredeiicton, the other 
at Penobscot ; peaceably binding the same place at the same time, is loo pre- 
posterous to be seriously maintained. No civilized nations can allow that a coun« 
try lying between them, and claimed by both, should be without rule or law ; 
where everv crime might be committed with impunity ; and which would 



APPENDIX. XLJt. 

afford fi sanctuary for the criminals who might estMps thither from either ; fur 
sio legal warrant could there arrest them. To admit such a principle, would 
be at once to say, that every act of sovereignty and jurisdiction which has been 
exercised over the various places left in dispute by the Treaty of 1783, is un- 
fluthorised and void, so lonu; as the true bounds remain undefined. I have said 
thus much on this point, because, though the defendant does not rest on it, ha 
must I conceive, to make out his excuse, be driven to adopt it; for what pos- 
sible reason can be urged for now transferring the jurisdiction to the State of 
Maine? Is there any argument in support of her claim, which will not with 
at least equal force maintain that of Great BritarTn ? Or is it to be left to 
every accused person to select the ji!ris({ictioM he likes best: at one tune that 
of New Brunswick, another, Maine ? His Hi)nour Mr. Justice ChipjiaN has 
already adverted to a case where the Couils of this Province gave to American 
citizens the benefit of this doctrine; but have not the United States practically 
uphehl the same ? 

Before the true Sr. Ooix was ascertained, there was a large territory in dis- 
pute, part u?ider the sovereignty of one government, and part under that of tha 
other; but was it attempted to subvert the jurisdiction of this Province over 
St. Andrews and a large part of Charlotte County, or that of the United State§ 
over the country lying to the westward of the Scudiac, or between the branches 
of that river? 

The defendant perhaps relies on his character of an American citizen for ii 
JHsfification. 

If I could for a moment believe he was actuHled by any conscientious fet-ling 
of patriotism ; that his natural allegiance wnrmed his breast and stirred him up 
to defy this gorernment ; however I might deprecate his acts, I might in some 
sort, respect his motives ; but the whole tenor of his conduct is at variance with 
Fuch fine feelings. He may seek shelter under the cloak of patriotism, but 
the sacred name of country should not be pnllutcd, in order to furnish excuses 
for acts and actors like the defendants in this Indictment; particularly the one 
now here. The easy tenure of the land where he has seated himself; the (res 
range through the forest for supply to his mill; escape from arrest for the 
large sums he owes to British subjects; the popular applause he may hope to 
maintain among a portion of his countrymen, will I think be found the moving 
springs ; or, it may be a worse motive ; such as was alluded to by one of his own 
confederates; that restless spirit which actuates unprincipled men of desperate 
fortunes to long for troublesome times. The circumstance of his being uii 
American born, cannot alter the case ; as he intended to be, and considered 
himself in New Brunswick; he had been some time at the Bay of Chaleur; 
after he moved to the Madawaska, was desirous of becoming naturalized as n 
British subject; inquired the requisite steps ; (and it could be proved, if one of 
the witnesDss had not been absent from the Province, was ready to take the 
most serious one;) he claimed and enjoyed the benefit of such a disposition; 
held himself under our laws ; applied to them for the recovery of his own rights; 
and, in short, was as much a subject, for the time, as if he had been born and 
lived in this place; swore to the land as part of New Brunswick, after culti- 
vating it as such ; and assisted in running out the lines under a warrant of 
survey from His Excellency the Lieutenant Governor, in order that a grartt 
might pass, which thou,!jh not in his name, the Surveyor says would have been 
for his benefit : If then the jurisdiction io to be determined by the national 
character of the defendant's possession ; are not the acts which have been 
proved unequivocal marks of its beiiig British rather than American ? He 
sees it in this light liimself ; he fixes a lime for changing it ; hoists the Ameri- 
can flag; and he arid his confederates pour out their libations under it ; urnl 
without the least authoriry from their Government, utter a new act of 
independence for Madawaska, and bind themselves lo give defiance to (ireat 
Britain, declaring they should be supported because thty ought to be. Is not 
this a plain confession that the Biiiiab Govemmenl was in force, and soniB 



XX. APPENDIX. 

art WA( re'fuireJ to drtermint it? C«n cbe United States allow the raliJii/ 
of acts like iheie, or will diry upon priiiriple (uffer the qiiettion of tnvrrei^'irjr 
•rid jurisdiction to depend on the b.inner a few unauthurizod inil^viduHls m.iv 
rlioote to ditpliiy, or the document they may choose to tulinctibr ? Anoihcr 
prrinn may ljuy the land from tite drfenddnt tomorrow, and iruke prorUmu- 
lion for re-establishing; the Uriiith law* under the ensign of Ki'^land. The 
ttatement* of the witnetset mutt be to fuliy in the recuilectiun uf your Honora, 
that It will not be nrrestary for me to repeat them; tiierc never wa» pi-rhiipi u 
more wanton and unprovoked outra(;e; or a con«pirary more deliberately 
planned and acted on. Whatever consequencet may ensue, I frel fully con- 
vinced, and were it with my Ust lircnth I should say so, that it was nccea>ary 
to rairy on this prosecution. If this had passed without notice, the ifeftndiinti 
would have persisted, and urged to tlie Nluduwaskt icttters the limidiiy or im- 
beciliry of this Government, as an inducement for their putting; lhemi>elves undrr 
the ; n of a state more able or wiliiiii; to defttid them. There was no 

alttr: . ;wcrn biingin^ this man to trial, and yieldiii(; up, in cflVcr, the 

iorerei){nly, jurisdiction atid possession of the Mudnwuftka. We need not 
iheiefore ba surprised at the protest a(;ain«t the power of this Court, and the 
clamour raised in his behalf. \N'hat has passed I h'>pe will prevent u recur- 
rence : the dffendnnt is a man of some years, and haa khown a sense of pro- 
priety by hi* respectful demeunour towards the Court. I should urj^e him to 
rrflect orr hi« conduct. I a^k not any severe punishment ; the dcft-iidant has 
already snfTircd a loin; itnprisoiunfni ; and hns come some dis'iince to Httcnd 
(he trial ; he was (li»rharj;ed also from a civil suit urulcr the confined dcbinrs 
act ; I must therefure suppose him uoHble to pay a very iar|;e fine. I have 
already usid the discreliotr vested in me, in his favour, by di^confiruiinif 
tiie other prosrcutinns against him, and I should be ^lod to nhow him dml ilia 
exercise of our laws is characterised by mildness as well as firmness. 

The Defendant beiru a^ked whchcr he had any thin;; to say in mitigation, 
Bddre»sed the Court to the followinjf tlTiCt : — 

That having been brought here i«nd made amenable to tho jurisdiction of 
this Court, bo mhs bound to submit ; hu bad nutliin^ parliculur to ur|;<>, and no 
BfGJnvit to produce ; there were cirruniktnnci-s, ulitcli if be couM be able to 
brin;: fonvar.l, n)i;,'lit be of usi-, but a* be was not prepan-.l wi'.li nil, he con!«i- 
dered it not worth while to adduce uuy proof; hu kubmiUed biruself to tha 
consideration of the Cosrt. 

His Honor .^Ir. Justice Dliss then proceeded to pass ccnlcnce to the fol- 
lowing tfftct ; — 

Thai the iJefeDrl.int, John I3aher,\\ai been indicted by tho Grand Jury of the 
County of Vurk, fura seditious con>pir.-icr, committed liy him and others witi>iu 
the Jurisdicliun of this Court; to which he had pleaded not guilty ; ul!c;,'in{f 
ut the same lime, that be did not consirier himself amenable to the proces^i of 
the Court, bein^ a citizen of the United Slates, and that the offence chari;ed 
was coniinilted in their territory ) but the Court could not admit this t« be the 
case, it appoarinif clearly lli«t the .Maibiwask.i settlement, where the offence 
was coniinilted, had been from the fifst erection of the Province hilherto, 
under our laws and subject to our juriidiction ; and a^lfr n very fair and full 
iiiveslijjalion of the ca*e, be, the defendant, haJ been convicted by a Jury ol tha 
country, and it now remained for the Court to pass their sentence upon him 
for (hisofTeoce: in doin? which their object was to treat him with that lenity 
which, so f.ir as was consistent with the ends of j-istice, was uniformly extended 
to hia Majesty's subjects ; and allboujh the Court considered tho crime of which 
the defendant had been I'ound guilty, of n very n^j^ravated nature, they have 
had rei^ard to his previous Ion;,' imprisonment; and their olject beint; to secu'e 
the future peace of the country, and not to pass a vindictive sentence personally 
"gniost himself, they had awarded the punishment accordingly ; and did sen- 
tence him to be imprisoned in the common (faol of tho County of York, fur 
the term of two calender months, and to pay a fine of £'2j to the King', and 
remain committed uutil ihe&ne be paid. 



NO. Ill, 



[From the FraJerktoa Royal Gazette, October 19, 1831.] 



Of the Trial of Barnabas Hannawell, Jesse Wheeloctc, and 
Daniel Savage, before the Supreme Court of the Province 
of New-Brunsv/ick, at Fredericton, on Saturday the 15th 
October, 1831 ; being in Michaelmas Term, in the second 
year of the Reign of King Wilm.ui the Fourth. 



SIPKEJIE COURT. 

."flichaeltnas 'Stents, Zd ^W*illiani If*. 

On Thursday the 13th October, in this Term, the Grand Jury for the County 
of Yoik preseiiiefi a Bill of Indictment against Barnabas Haimavvell, John Baker, 
Walter Powers, Jeisse Wheeiock, Daniel Savage, Randal Harford, John Haiford, 
Nathuiiicl Bartlett, Augustiii Webster, and Amos Mattocks, as follows. 



SUPREME COURT. 

0/ Michaelmas Term, in Ihe second ijear of the Reign of King William 

the Fourth. 
York, to-ivit. 

1st. The Jurors fur our Lord the Kinrr, upon their oath, present, tliat Bur- 
nabas Hannawell, late of the Parish of Kent, in the said County of York, 
labourer, John Baker, late of the same place, labourer, Walter Powers, late 
of the same place, labourer, Jesse Wheeiock, late of the same place, labourer, 
Daniel Savage, late of the same place, labourer, Randal Harford, late of the 
same place, labourer, John Harford, late of thesaine place, labourer, Nathaniel 
Bactlett, late of the same place, labourer, Augustin Webster, late of the same 
place, labourer, and Amos Mattocks, late of ihe same place, labourer, beinjr 
pernicious and seditious men, and greatly disaffected to our Lord the now Kinjj 
and his government, within this His Mnjesty's Province; and also of unquiet 
and turbulent dispositions, and devising, practisinj^, and falsely, unlawfully, 
unjusily, maliciously, turbulently and seditiously intending to disturb, molest, 
and disquiet the peace of our said Lord the now King, and the public tranquil- 
lity of this His !NI.ijesiy's Province of New-Brunswick ; and, as much as in 
them lay, to move, stir up, and procure sedition within the same ; and to sub- 
vert llis said iVLijestj/'s authority/ within the same, and to set up and estab- 
lish a Foreign Power and dominion in place thereof; they the said Barnabas 
ll.innawell, John Bdker, Walter Powers, Jesse Wheeiock, Daniel Savage, 
Randal Harford, John llarford, Nathaniel Bartlett, Augustin Webster, and 
Amos Mattocks, to fulfil, perfect, and bring to effect, their most wicked, de- 
testable ufid seditious intentions aforesaid, on the twentieth day of August, in 
the second year of the reign of His Majesty the now King, William the Fourth, 
by the Grace of God of the United Kingdom of Great Britain and Ireland, 
King, Defender of the Faith, &c. ; and at divers other days and times, as well 
before as after, with force and arms, &c., at the Parish of Kent, in the said 
County of York, iiulawfuliv', u'ljustly, maliciouily and seditiously did assemble, 



xxn. ArrcNDix. 

roeef, conspire «nJ confeJtrtte ihemiflve* logetbir, ■tid with dirert olhrr 
eril di»po»ecl «uhjfct« of our laid Lord ilic Kmj, to the Juror* «fore««id un- 
known, and with the same did treat of an<i conrernini; the executinjf, perfccf- 
in|;, and brin(;in(r to effect their wicked and seditious compas»ing<i, imasiiia- 
lion*, and purpo<:ei aforeuid. 

2d. And the Juror* aforesaid, on their oath aforesaid, do further present 
that the aaid Uarnabaa Hannawcll, John Baker, Walter P.iwer*, Jcsse NVhec- 
lock, Daniel Savage, Randal ilarford, John Harford, Nathaniel Bartletf, An- 
(fuitin NVebiter, and Amo* Mattock*, further to fulfil and hrinar into efffCt their 
moit wicked, detettable, and seditious dcviro*, practices and intention* afore- 
said, then and there, to-wit, on the twentieth day of Aueust aforesaid, in the 
a«cond rear of the rrijjn of our said Lord the now Kinjf af orcsnid, and at dirert 
Other days and limes, a« well before as after, at the Parish afiircsaid, in the 
County aforesaid, with force and arnos, &c., unlawfully, maliciously, and aedi- 
(iously, did consult, counsel, conspire, and confederate to disturb the public 
tranquillity of the Prorince, then and thereunder the pretended authority of a 
certain instrument or paper, purportinjf, as thev declared, to be nn net of tha 
Legislature of a foreign jtoTernment called ilie Stale of Maine, and one of iho 
United Stales of America, and of a certain other instrument or paper, in wri- 
tinjf, purporting to be as they deciarrd, a warrant under the hand and seal of a 
person by the name of William l). Willinmson, ns n Justice of the Peace for 
the said foreign government of the said Slate of .M«ine, did elect and choo«o 
from amoni; themselrei the said Barnabas Mannnwell, John Baker, Walter 
Powera, Jesse Wheelock, Daniel Savage, Rand;il Harford, John ilarford, Na- 
thaniel Bartlett, Augu^tin Webster, and Amos Mnllock', so being then amj 
there unlawfully, imju^ily, mal:ciou*!y,Bnil sediiioinly akseinbled together, cer- 
tain persons to be and act as officers under the said foreign governmcnf, and 
to execute and perform ilic duties ihrreof as such officers under the said foreign 
government of the said State of Maine, there to-wit : in the said Pitrish of 
Kent, in the said County of York, to-wit : the said Barnabas llannawell to a 
certain ofTice under the title or denomination of Moderator; the said Jesse 
Wheelock to a certain office under the title or denomination of Town Clerk ; 
the said Amos Mattocks, Daniel Savage, and John Unrford respectively, to 
oflices under the title and denomination of Silcct Mm ; nnd the said Handal 
Harford and Barnabas Hannawell, respectively, to office under the till" and 
denomination of Consfablec ; nnd did then and there unlawfully, unjustly, ma- 
hcioiisly. and seditiously administer or cnuse to be administered to the siiifl 
Amos Mdttocki, D.miel Savage, and John Harford, as such Select Men, n cer- 
tain oath of olFice ; which same oulh of office was then and there by the said 
Amos Mattocks, Daniel Savage, and John Harford, received and taken. 

3d. And the Jurors aforesaid, on their OHih aforesaid, do further present 
that the said Barnabas Hnnnawell, John Baker, Waller Powers, Jesse Whee- 
lock, Daniel Savage, Randal Harford, John Harford, Nathaniel Bartlett, Au- 
gustin Webster, and Amos Mattocks, further to fulfil nnd bring into efl'ect 
their most wicked, detcsialile and seditious devices, practices nnd intentions 
aforesaid, then nnd there to-wit, on the twentieih duy of August aforesaid, in 
the second year of the Reign of our said Lord the now King, and at divers 
other days and times, as well before as after, at the Parish aforesnid, in the 
County aforesaid, with foice nnd arms, ^c, unlawfully, maliciously and sedi- 
tiously did consult, counsel, conspire and confederate, to disturb the public 
tranquillity of the Province, and then and there giving out nnd pretending to 
act by authority of a foreign government, to-wit: the State of Maine, one of 
the United States of America, and of one William I). Williamson, ns a Justice 
of the Peace of and for the said forci>;n government, did elect and choose from 
among themselves, the said Barnabas Hannawell, John Baker, Waller Powers, 
Jesse Wheelock, Daniel Savage, Randal Harford, John Harford, Nathaniel 
Bartlett, Augustin Webster, and Amos Mattocks, so being then and thera 
unlawfully, unjustly, maliciously and seditiously asicinblcd together, certain 



APPENDIX. XXni. 

persons to be and act as officers, under the said foreign government, and to 
exercise and perform the duties thereof under the said foreign government, 
there, to-vvit : in the said Parish of Kent, in the said County of York, to-wit : 
—the said Barnabas Hannavveii, to be a certain officer under the said foreign 
government, by the title of Moderator; the said Jesse Wheelock, to be a cer- 
tain officer under the said foreign government, by the title of Town Clerk ; 
the said Amos Mattocks, Daniel Savage, and John Harford, respectively, to 
be officers under the said foreign government, by the title of Select-Men; and 
the said Randal Harford and Barnabas Hannavveii to be officers under the said 
foreign goverment, by the title of Constables ; and did then and there unlaw- 
fully, unjustly, maliciously and seditiously administer or cause to be adminis- 
tered to the said Amos Mattocks, Daniel Savage, and John Harford, as such 
Select-Men, an oath of office, v\'hich same oath of office was then and there by 
the said Amos Mattocks, Daniel Savage, and John Harford, received and 
taken. 

4th. And the Jurors aforesaid, on their oath aforesaid, do further present, 
that the said Barnabas Hannawell, John Baker, Walter Powers, Jesse Whee- 
lock, Daniel Savage, Randal Harford, John Harford, Nathaniel Bartlett, Au- 
gustin Webster, and Amos Mattocks, further to fulfil and bring into effect 
their most wicked and seditious devices, practices, and intentions aforesaid, 
then and there, to-wit, on the twentieth day of August aforesaid, in the said 
Becond yeur of the reign of our said Lord the now King, and at divers other 
days and times, as well before as after, at the Parish aforesaid, in the County 
aforesaid, with force and arms, &e., unlawfully, maliciously and seditiously con- 
sult, conspire and confederate to make disturbance, and did incite, iiivile, and 
endeavour to persuade and induce the liege subjects of our said Lord the King, 
then and there being, to take part with and join them the said Barnabas Han- 
nawell, John Baker, Walter Powers, Jesse W^heelock, Daniel Savage, Randal 
Harford, John Harford, Nathaniel Bartlett, Augustin W^ebster, and Amos 
Mattocks, in electing and choosing certain persons to be and act as certain 
officers, under the authority of the said foreign government of the State of 
Maine, thereat the said Parish of Kent, in the said County of York. 

5th. And the Jurors aforesaid, on their oath aforesaid, do further present, 
that the said Barnabas Hannawell, John Baker, Walter Powers, Jesse Whee- 
lock, Daniel Savage, Randal Harford, John Harford, Nathaniel Bartlett, Au- 
gustin Webster, Amos Mattocks, further to fulfil and bring into effect their 
most witked and seditious devices, practices and instructions aforesaid, then 
and there, to-wit, on the twentieth day of August aforesaid, in the second year 
of the reign of our said Lord the now King, and on divers days and times as 
well before as after, at the Parish aforesaid, in the County aforesaid, with forca 
and arms, &c., did unlawfully, maliciously and seditiously consult, conspire and 
confederate to make disturbance, and did endeavour to persuade and induce 
divers of the liege subjects of our said Lord the now King, then and there 
being, to depart from and violate the allegiance which they the said liege sub- 
jects owed to our said Lord the King, and to acknowledge themselves to bo 
citizens and subjects of a foreign Government, to-wit : the Government of 
the State of Maine, one of the United States of America. 

6th. And the Jurors aforesaid, on their oath aforesaid, do further present, 
that the said Barnabas Hannawell, John Baker, Walter Powers, Jesse Whee- 
lock, Daniel Savage, Randal Harford, John Harford, Nathaniel Bartlett, Au- 
gustin Webster, and Amos Mattocks, further to fulfil and bring into effect 
their most wicked and seditious devices, practices and intentions aforesaid, then 
and there, to-wit, on the twentieth day of August aforesaid, in the said second 
year of the Reign of our said Lord the now King, and at divers other days 
and times, as well before as after, at the Parish aforesaid, in the County afore- 
said, with force and arms, &c., unlawfully, maliciously and seditiously, did as- 
semble, meet, conspire, and confederate themselves together, to molest and 
disturb the peace and common tranquillity of this Province, and to bring into 



XXIT. APPENDIX. 

hatred iind contempt our laid Lord the Kin(; and Hit Goremmrnf, nrtd create 
fiiUe opinions and kutpiciont in the mindi of the fultjecls of nur v.iiil Lord tlie 
Kinp, of and concerninjj the Government of our suid Lord the King", and of 
the Royal Power, I'reropaliro and Sorereignly of our »»ij Lord the Kintr, 
within ihii Province, in very preal contempt (o our «aid Lord ilie Kinjj hiuI 
to Hit Lnwt, the evil example of all oihert in the like cate olTending, and 
■gainst the peace of our taid Lord the Kin|;, Hit Crown and di(;nity. 

CHARLES J. PETERS, Attorney General. 

On the moiion of the Attorney General, the Defendants, Ilfirnahas Hanna- 
well, Jetse Wherlork, and Diiniel Savage, who liad been nrrcsltil and were 
then in confinement in the Gaol at Fredericton, for want of Hail, were bron;jlit 
into Court, ard arraigned on the Indictment: to which ihcy tcverully p!ea<led 
not pulify, and taid they were ready for their trial. The expeilirncy of etiferifijj 
into recognizance to appear at the next Term and trnveree the Indirtment, lieiri){ 
atated to the Drfendanti, they retireil for a few minutes into on oiljoining room 
to connul: together, and on tlieir return, tlie defendant Barnabnn Hannnwi-ll 
taid, that as he did not think tliat it would he in llieir power to prorure bail, 
they were desirous the Iritl should proceed without delay. The ('ourt there- 
upon appointed the ensuing Saturday for llie trial, at the same time intimating 
that if the Dcfendunft were dctiroui to have the trial postponeil, it would be 
quite open to them to do to at any time before the .lury were impannelled. 
They then asked what security would lie required, and the Court determined 
that the recognizance aliould be lli«mtclvet in .£100 each, ar.d two luretiei in 
£50 each. 

.(^Attiril*}-, 15(h October, 1S31. 

PRKSHNT. 

Hi* Honor The Chikf .Fusticb, 
Mr. Juitice Bl.iss, 

Mr. Justice RoTsrono, 
Mr. Justice Cm I'M a"*. 

On moiion of the Attorney General, the said Defendants, Darnnbai Hanna> 
well, Jt-ise Whceiock, and Daniel Savage, were brought into Court by the 
Sheriff — and being asked by the Court whether they were ready for their trial, 
replied in the aflirmativp. 

The Attorney General said that the Defendants being indicted for o mit- 
demennor only, it was not according to the ordinary practice that their trials 
should take place at the same Term ; and that for many reasons he thought it 
desirable that the present case should stand over until the next Term ; that it 
was the wish of the Crown Ofhcers to postpone it, but, that as the Defendants 
were in custody, he was willing to comply with their request and proceed im- 
mediately if they persisted in desiring it. 

The Defendants again said, that as they did not think they could procure 
the requisite security, they wished the trial to proceed. 

The Attorney General then moved for trial, and intimated to the Defendants, 
who conducted iheir own defence without the aid of ("ounsel, thot they might 
challenirc any of the Jurors as they were called, for cause. 

Donald M'Leod, one of the Jurors called, was objected to, and thereupon 
sat aside. 

No other objection was made, and the following Jurors were called and 
sworn : — 

George Nevcrs, .Tohn Russell, Robert Gownn, 

James Tibbits, Holland Esty, William J. Etty, 

James ("ameron, Asa Coy, Thomas Stewart, 

William Miller, Thomas Gardiner, John Payson. 

The Clerk of the Crown rend the Indiclmeut and tinted the pleat atid iitues 
joioed thereon. 



J 



1?PENDIK. Sxr. 

The Attorxey Gexkh ai. opened the case on the part of the prosecution, and 
stated luiefly and generally the 8ul)«tai)ce of the imiiotment and nature of tha 
charge, and the evidence ijetiuisite to support it, that tlie main allegation was 
that of conspiring and confederating together to subvert His Majesty's Go- 
vernment in this Province. The defendants and others, in pursuance of this 
design, had been guilty of various acts of sedition, particularly detailed in the 
indictment, which would be fully proved by the witnesses he should call. 
This was an ordinary indictment found by the Gratid Jury ; he should not 
anticipate the grounds of defence, but leave the defendants to show, if they 
could, any suffic'ent justification for their conduct. It would be thu duty of 
the Jury to decide on the facts under the law, which would be stated to them 
by the Court. 

The Attorney General theft proceeded to call the wicnesses. 

Leonard R. Coomhes, sworn and examined. — I know the defendants ; have 
known defendant Wheelock ten or twelve years; have seen Hannawell some 
years ago, but had no particular acquaintance with him till I went to Mada- 
waska ; never saw Savage till I went there. Hannawell lives near John 
Baker's mill, in tlie Madawaska settlement; Wheelock lives near the mouth of 
the river St. Francis; Savage lives on the Fish River, which is a large stream 
making in from the west side of the main river; I reside in the Madawaskti 
settlement, on the east side of the river St. John, about 12 miles al»ove the 
Grand Falls ; have lived there nearly two years, and am a Captain in tlie Militia 
of this Province. H.aving heard that there was a notice posted up in the set- 
tlement of a meeting to be held at Captain Peter Lizotte's on the 20th August 
last, I set off on the morning of that day to go there : went up by water, 
and stopped at Firman Thibideau's on the way, where I saw John Baker, 
Amos Mattocks, John Haiford, and Randal Harford, and went in company 
withj^hem to Captain Lizotte's. The three defendants were there, also Wal- 
ter Powers and several other persons, among them Mr. Rice arid Mr. Beckwith, 
and some of the French inhabitants. The intent of the meeting, as I under- 
stood, and as was declared by some of the persons present, was to elect town 
officers for Madawaska, under an act of the State of Maine. Captain Lizottw 
called the Frenchmen out of the door, and spoke to them in French, which I 
do not understand ; on his return i heard Walter Powers say, let us go into 
the field and see what we can do thtre : he then went out to a cart which 
stood in a field near the house^ and the defendants and the other Americans 
went with him ; Mr. Rice and I also went. Walter Powers commenced l)y 
taking out a book ; he said he had not his spectacles, and requested one of tlie 
others, I think it was Webster, to read the corporation act. 1 asked Power* 
by what authority he was going to read that act ; he replied under the autho- 
rity of a warrant he had : I asked him to show me the warrant ; he said ha 
would when lie hail read the act ; I replied, that he should not read the act 
until he had shewn me the warrant; he hesitated about producing it, but did 
so on my pltdfjing my honor (o return it ; he then shewed it to me, and I read 
it and handed it to Mr. Rice to look at it. After seeing the contents of the 
warrant, I told Powers that this was a part of the Province of New Brunswick, 
and that, at all events, the British law was in force there; that the laws of 
New Brunswick were those we depeiided on far our rights in any case; that 
if he jiiould proceed, I should take the earliest opportunity of reporting if, and 
have them dealt with according to law; that they might depend upon it the 
British Government would not allow such acts to be carried on in that part of 
the country ; that we were British subjects, and could not allow such proceed- 
ings. They went on to read the act, and theii the warrant ; I think Webster 
read them ; they were read under Powers' order. They then proceeded to 
elect a Moderator; the election was l)y ballot, each writing on a piece of 
paper, folding it up, and ihrovving ii into a hat ; the defendant, Barnabas Han- 
tihwell, was declared by Pawers to be chosen Moderator, and then took charge 

4 



XXVI. APPF.SDIX. 

of ih^ meeting ill that capirily. I (hen rolJ Hannawe'.l he haJ better d(>tf<r, 
■« itie Uriliah (invernm<>nt would ptoceril a^jairist him; his rrply wan, I hiq 
willipf; trery man should be pcrtuadctl in hit own mind : he then xaid l)f wna 
tipclvd into an office, and his (Jovernroent would tupport him in it. Thfy 
neit elected a Town (Merk, Select-men, and Constables : John Harfon), 
Danirl Sarnge and Amos Maltork* were chosen «elect-men ; Jesse \\'heelock, 
lown cleik ; lUnddl liMrford and Udrnabas Ilannnwell, constable*. Paul 
Crock, otherwise called Paul Cere, one of the French, was the 6rsc chosen a 
arlect-man ; I advited him not to act, and he thereupon declined. Homaine 
Micheau, another Frencliman, was chosen a csnstalile, but he also, bv m^ ad- 
vice declined. Thejr then proceeded to swear in the select •men. The same 
peifons beinf; appointed Attcssars, I cannot say wbetlur theoaih was as asset- 
aors or silect-men ; the oath was tend from a book, or a paper in a book ; the 
form wa«, huldini; up iheir rijjht hands nnd bowing their heads. A roiivcrsa- 
lion then took place between John lUker and myself, in the presence of the 
parly, about the Oorernmrnis; Baker said their government had taken a stand 
■fid were not (jninjj to deviate from it ; I understood he meant tl)e State of 
Mitine. He expressly denieil the authority of the British Gorernmrnt, and 
said (hey considered themselres in the County of Penobscot, in the Slate of 
Maine, one of the United Slates of America. Baker seemed iho most realout 
of the whole; it is the same Hak< r wlio was tried here before; he was the 
ehief spokesman, hut refufed at that time to take any office ; (he other Ame- 
ricana seemed to acquiesce, but taid little; Baker and Poweis were the warm- 
est; thedefendant H^nnawell said little or notbing till ho was chosen modera- 
tor; he siiid he would tnke no part till he was put into ofTire ihnt would 
indemnify him. About half the number present were of the rrcncli itihabi- 
lanu: BAer tried litrd to persuade them to vote, and I tried hard to dissuade 
them; I think it was the interference of iMr. Ilice and myself that prevented 
the French from vot'ng. Peter Lizottc's house is on the western side of the 
rifer, about two mile* below the chapel, and about 30 miles above the (JroHt 
Falls : he is a Captain of the Militia of this Province : I have done duty with 
him : he is an old man, to appearance upwards of 70. Baker lives on a point 
of Innd called Baker's Point, near the junction of another rivci, on which ho 
has a mill ; he is on the east side of ihe Iliver St. .lohn. 

The wi/nett was then crott-exa mined by Ihe defendant Hannnwcll — He 
was a^ked what Mr. Madauchlan, the British Accnt, had told him about the 
line. [The question was objected to by the Attorney General, who stated 
that he intended calling Mr. Madauchlan as a witness, nnd the defendants 
would have on opportunity of examining him, and mijjhl, if they pleased, re-call 
Mr. Coomhes ufrer Mr. Madauchlan was examined.] To other questioiia 
put by ihe dtfendonf, the witness slated that lie ne»er knew of nny of the 
defendants present ever m^ddlinp or interfering^ with the difFiciillies existing 
before this; did not h»-ar them using any solicitations to the French, neither 
did they inietferc with his protestine np:iinst the meeting: witness said he 
did not address himself to ihcm ; Wnlter Powers was the only person who 
opposed his making n protest ; he was the only one who spoke till IlannaweH 
was chosen moderator: H.inna\ve!l never opposed witness in saying what he 
likei to the French or English, neither did the other two defendants; never 
knew any of the defendants resisting the execution of the British or Provincial 
laws, except in this inslonce. 

To a question from the Court, witness said he did not read the act till after 
the meeting was over : to one put by a Juror, he said it was H..nnawell who 
called them In come forward and tike the oath, which was adiiiinislcred by 
Hannawell or Wheelock, but which of the two witness caimot say. 

Francis Rice, Esq. sworn. — I know the defendants; have known Savage 
four or five years ; Hani.awell better than three ; Whcelock about three years. 
— About lv!(i) August, received information from .Mr. Obert that there was 
to be a meeting at Ciptain Lizoile's hou»e on the 20(h : was told there was a 



APPENDIX. XXVll. 

notice posted up at the house of Baptist Sousse, and went there and saw it. 
1 went to the meeting at Peter Lizotte'a on the 20th August : the defendants 
were all there; also Bartlett, John Baker, John Harford, Webster, and Mat- 
tocks; also a number of French, about half. I understood the object was to 
appoint town officers for Madawaska, as belonging to the State of Maine, one 
of the United States of America. Walter Powers declared the object of the 
meeting, and took the most active part. Captain Lizotte asked me, in tha 
presence of the defendants, whether I thought there could be any harm in his 
allowing the town meeting to be held in his house ? I replied, that as a Bri- 
tish subject I should not allow it in my house; but that he was master there, 
and might do as he thought proper. Captain Lizotte then left the room, and 
I concluded, from what afterwards took place, that he had objected to the 
meeting : they then assembled in a field near the house. Capt. Coombes, who 
was present, asked Powers fur his authority: Powers banded him a paper, 
which he read and handed to me. I asked Powers for a copy of the warrant 
so shewn ; he said he did not know what right I had to demand a copy : I 
fold him I would keep the original and send it on : he then concluded to let 
me have a copy, which Igor, and sent to Mr. Maclauchlan. I am a Justice of 
the Peace for the County of York, and in that capacity protested against the 
meeting in the King's name, and required them to desist. Finding that the 
Americans were determined to go on, I left them and went home. The place 
where they met is in the Parish of Kent, in the County of York c Lizotte ia a 
Captain of the Militia of the Province : I am a Captain and Adjutant, and have 
acted with him. John Baker is the same who was tried here two or three 
years ago ; he now lives on the same land lie then did. The Americans all 
appeared to be acting in concert with the same purpose. The French settlers 
attend the Militia trainings, and turn out as regularly qs the other inhabitants 
of the Province. 

Cross-examined by defendant Hannaivell. — I never knew of any of the 
defendants to interfere with me as a magistrate, or take part in any of the dif- 
ficulties which occurred previous to this time : have heard you say you were 
in opposition to Baker and his proceedings; this was before the last meeting; 
I never have been molested since the meetings, never knew or heard of any of 
the defendants molesting any of the officers or magistrates of the Province 
before or since the meetings. 

Re-examined. — I speak of two meetings; there was a second meeting: at 
their second meeting, Hannawell resisted me and bid me defiance, I think at 
this meeting he endeavoured to influence the French. 

Michael 7'ighe sworn. — I know the defendants, have known Wheelock and 
Savage three or four years, and Hannawell two or three years, was present at 
the meeting spoken of by Mr. Rice — the first meeting, I understood the object 
of the meeting was to choose Town Officers under the Government of the State 
of Maine ; Powers took the lead in the first instance, all three defendants were 
present ; I have been in Court and heard the evidence of the other two witnesses, 
believe what they have stated to be correct, can say nothing in addition. 

Cross-examined by defendant Hannawell. — I did not hear of any of tho 
defendants at the first meeting endeavour to influence the French. 

Romaine Micheau called, but not speaking English, Francis Rice was 
sworn as Interpreter, the witness was then sworn and examined. I know tha 
defendants, have known them over three years, I have lived about throe 
years and a half in Madawaska, on the west side of the River, near Green 
River below the Chapel ; a paper was posted np at my door by John Baker; 
a paper was then shown to the witness which he said was the same one so 
put up; the paper was then read and was as follows : 

NOTICE. 

J^" By a Warrant to me directed, from W. D. Williamson, Esquire, in 
the Counfy of Penobscot, and St^ite of Maine— This is to notify to the ii.hn^ 



xxviu. Arri.NDix. 

hitaoik of ih* Town of ^Itddtrttk*, (jaalififd to vots in Town n(li\t», ro R«ten>- 
lilr It (h« Hwelling hoiMC of Mr. Wier I. zoitr, nn Sanirdiiy 20(h itny of All|{ut^, 
1831, at one o'clock in the uHernoon, to act on the following articles, viz : 

1. To rhooie a Moderator of laid meciinj. 

2. To choo«e a Clerk of (aid Town. 

3. To choose Select-Men. 

i. 'I'o chooja Cuniiablet and other Officcri. 

WALTER POWERS. 

Uy order of the aaid Juilice*. 
I attended the meelinf; aitd waa chosen Conitable, liut declined to act. 

Edward M'. MJJer, E*q. aworn. — I atn High Sheriff of (he ('ounty of 
York, have been to tinre 1814, have lived in ihe Province over 40 year*, hare 
nlway* confidercd the Madawaika ccttlemenC in my bailiwick, hftve contiantlj 
executed the King's Process there, hav« taken the Toirs of the Inhabitania 
there at Election*, have never met with any resistance or obstruction in iha 
(•xecurion of my duty at all there, 1 know Capl. Ijz:;tte*s house, have always 
considered it in the MaJawatka setiUmcnt, and within my bailiwick. 

The Attornkv Genehai. here put in an Ksemplificniion, nndcr the Greni 
Seal of the Province of Loiters Patent, dated Isl October, \~'.>0, grantinp to 
Joseph Muzeroll and 48 others, bl several Lots in the district of Mmlawaska , 
m the County of York, being IP>,~0'J acres, which was read. In this Grant 
Lot No Ub IS (granted to Pierre Lizotte. 

John Rebfrtt sworn. — Staled that he was a Clerk in the Surveyor General' 
Office of llii» Province, in the drnftinjj drpuriroeiii ; that ii was within his de* 
partment to have charjfe of the Papers, lie prodnceil u Hook containing the 
original record of the plan of survey of the Land mentioned in the Grant to 
.'o*eph Muzeroll and others, which he said came from among the Uecords m 
the oflire. The plan wa^ put in. 

Francis liurc recalled, the plan exhibited to him. Peter Lizotte lives on the 
Lot called No. 1 5 granted to John Martin, bis house is within the limits of the 
grant to Muzcrnll and other*, 1 am fjuife sure of it, Simon Aubcar, Junr. lives 
on the Lot which wn* granted to Pierre L'zolle. 

Peter Fratcr, Esq. sworn. I have lived in the Province since the year 
1784, and nm acquainted with the Madawaska settlement, have been there 
frequently, hove known some of the settler* «ince 1787 or 1788, have always 
considered them under the Government of thi<i Province. I am Lieut. Col. of 
the Mililia in the district of Madnwaska, and a Justice of the Peace for tho 
County of York, and have been <o nearly '24 years, I was a member of the As- 
sembly for the County from Ib09 to I8"27, the inhabitants of Madawneka have 
voted at every election at which I was chosen, there was formerly a difficulty 
in their voting on account of the Elertor's onth, as ihey were Catholics, this 
M-BS removed by the Legislature, they lisve done Militia duty in the settlement, 
Tarish Ofliucrs have been appointed there by the Sessions constantly, I have 
known Captain Peter Lizotte since 17y'J or 3, he was a half brother of 
Captain Duperrc, the founder of the Settlement, I know Captain Lizotte's 
liouie, have been there, he has lived 14 or 15 years where he now lives to my 
knowledge. 

Jamrs A. Maclattchlan, Esq. sworn. — I liavo known the defendant llanna- 
M-ell 7 or 8 years, he lived at the Oromocto when I fiist knew him, have known 
the other two defendants two or three years, was not present at the meetings; 
knows nothing of them except from correspondence. 

Crostexntmncd bt/ defendant Hannawcll.—l have no recollection of talking 
to the Mndawaska settlers and telling them I had orders not to interfere if the 
Americans confined their proceedings to one side of the river. 

Queitiiin hy dt-jendanl \Vheclock.—YS\^ you not tell Captain Coombes that 
you had insiruilions from the Chief Justice of the Piovince, that if the Ame- 



APPENDIX. XXIX. 

ricans eonfiiied their proceedings to one lida of the rirer, not to interfere 
with them ? 

The witness hesitated to answer the question, as he considered it improper 
to mention the instructions he received while acting as an officer of the Go- 
vernment, but on being informed that the question was a proper one, be must 
nnswer it, said I do not recollect saying this to Captain Coombes, what I did 
say was, that if the American agents conSned their proceedings to the western 
side of the river I was to protest, and \ did protest ; this was before the 20tk 
August ; by the American agents I meant Messrs. Dean and Kavanagh. 

Re-examined. I saw Messrs. Dean and Kavanagh, they told me they had 
instructions to take an account of the inhabitants, the property, houses and 
other local information, but they had no authority and did not intend to use 
any compulsory proceedings, all the information was to be given voluntarily, 
I told them if they came on the east side of the river, I should take other 
steps, meaning thereby I should prevent them by force, I conceive they under- 
stood it in that sense also; with respect to the west side I protested against 
their proceedings ; this was before any town meeting. I had no allusion to a?iy 
euch meetings when I spoke of protesting only. I remained with Dean and 
Kavanagh three days. 

Henry G. Clapper, Esquire, sworn. I am Register of Deeds and Clerk of 
the Peace for the County of York, have been so several years ; there have 
been parish officers appointed for the district of Madawaska, as being in the 
Parish of Kent, sometimes separately for the Madawaska, sometimes not, 
there are a great many deeds registered in the Register's Office, of lands in 
the Madawaska settlement, some as much as thirty or thirty-five years back, 
the inhabitants of Madawaska have constantly applied for and received grain 
bounty, and still receive it; John Baker received it for the year 1822. 

The cau5e was here closed on the part of the prosecution, and the defendants 
were informed they were at liberty to address the Court or Jury, and produce 
evidence. 

The defendant Wheelock, addressed a fewr words to the Court, the purport 
of which was, that they were misled by the acts of the two officers, meaning 
Messrs. Maclauchlan and Coombes, and concluded they were not doing wrong 
80 long as they confined themselves to the west side of the river. 

The defendants then recalled the witness Leonard R. Coombes — Examined 
by defendant Hannawell. I had a conversation with Captain Maclauchlan at 
the time that Messrs. Dean and Kavanagh came; he was at my house, and 
said he was going in pursuit of Dean and Kavanagh ; he afterwards told me 
that he said to these agents, that so long as they confined themselves to the 
west side of the river in taking their assessment and account of the inhabitants, 
and the like, he should not interfere with them, further than to protest against 
their acts, except they e.\ercised an act of sovereignty ; I remember the defen- 
dant Hannawell asking me what conversation Dean and Kavanagh had with 
Mr. Maclauchlan; also that I told the said defendant that Mr. iVIaclauchlan 
had said to me that he had called at the Chief Justice's on his way up, and 
that the Chief Justice had recommended him, that as the matter was so near 
a settlement,* not to interfere with them if they confined themselves to the 
west side of the river, unless they exercised any act of sovereignty, and that 
it was better to take no rash steps. I mentioned this to the defendants Savage 
and Wheelock, before the first town meeting. 

The defendants then put in evidence a book as containing the act of the 
State of Maine, which was read at the first town meeting, and the original 
warrant which had been also read ; no objection being made to their admission, 
the act and the warrant were read, and are as follows : 



» Tills was very toon after the promulgation of the decision of the Kins of tli« N«- 
thcrlandi. 



XXX. ArrcNDix. 

HIAPTKR 151. 

An Act to incorporate tlie Town of MaJH\v«»kii, and fur otlii-r purpote*. 

Approved March \5th, I S3 1. 

Sec. 1. Be it cnactod by the Senate and House of HepreaentBtivct, in I.e. 
gidature assembled, THhi the Territory known and called by the name of 
Madawaska, in the Countifs of Madawaika and Penobscot, bounded a* foU 
lows: — Ileginninjj on the boundary line Leiwpcn this Slate and the Province 
of New Urutitwick, at the north east corner of the towiiship E. on (>reenleaf's 
map, thence to and aoulh of the rirer St. John ; thence \reet by the north 
!ine of Township F. and township K. to (he cast line of township numbered 
tixteen, in the then range of town«.hip«, west of the east line of the Stale ; 
thence north by :hc eait line of said Township nunnbered sixteen, to the north 
east corner thereof; ihrnce west by the north line of Township* numbered 
ftixteen in the third, fourth, fifth, sixih and seventh niii|;es, wist of die eait 
line of the State, thence coniiiiuin^; the tame course until il intersects the Iliver 
St. John; thence north until the line of it intersects the Iliver Saint Francis; 
thence by the centre of said river to the Grand PiKtage, to the line of Cunid.t 
and this State ; thence by the line of Canada as established by the Proclaroa- 
lion of seventeen hundred and iixiy-thrce, by the Commissions to Ctovcrnors 
Murray, Carleton, and Hdldimand, from seventeen hundred and tixty-lhrec to 
■evpMtecii hundred and ei|{hty-t:x, the act of the British P.irliameiit of seventeen 
hundred and seventy-four, and by the Treaty of Peace in seventeen liuiidreil 
nnd ei(;hty-threc, to tlie north-west anjle of Nova Scotia, now the north-west 
sngle of the Province of New-Brunswick : thence south by the line established 
by the Commissions to Governors Wilmoi, Cnmpbell, Lejrpe, Hu|;hes, llam- 
wond nnd Parr, from seventeen hundred and sixty-three to seventeen hundred 
and eifjhty-two, by the Treaty of Ptace of seventeen hundred and eijjh'.y-thrce, 
and by the Commissions to Sir Thomas Carleton the first Governor of New 
Brunswick in seventeen bundled and ei(;hty-four. to the first mentioned boundf» 
beinjf tlie cast line of the State, on the true meridian nortli from tljc monument 
at the head of the Iliver Saint Croix, be, and the same is incorporated into n 
town by the name of Madawaska, and the inhabitania of the same Town are 
hereby subject to tlic same duties and liabilities, and vested with the privileges 
and immunities which other incorporate towns arc witiiin this State. 

Sec. 'J. Be it further enacted. That all that first part of the County of Waiih- 
ington which lies within the limits of Madawaska, as described iri tiie first 
■ection of this Act, be and hereby it set off from the County of Washington, 
and annexed to the County of Penobscot. 

Sec. 3. Be it furtiier enacted, That any Justice of the Peace within the 
County of Penobscot, or any Justice whose Commission runs throughout 
the State, is hereby empowered to issue his warrant to some inhabitant of 
aaid town, directing him to notify the inhabitants thereof to meet at such time 
and place as he shall appoint, to choose such officers as towns are empowered 
to choose at their annual Town Meetings. 

STATE OF MALKK. 

Penobscot, ss. 

To Walter Powers, of Madawaska, in said County, greeting . 

(I.. S.) You are hereby required, in the name of tlie State of Maine, to notify 
and warn the inhabitants of said town of Madawaska, qualified to vote in town 
officers, to meet at Peter Lirotte's dwelling house in said town, on Saiurday 
the twentieth day of August, 18.31, then and there to act on the following 
articles, and to transact such other business as may be done btfoie them. 

1st. To choose a moderator to govern such meeting. 

2d. To choose a town clerk. 

3d. To choose sclcct-mcii. 

4tb. To choose constables and all other town ofliccri. 



APPENUIX. XXXl. 

And you are hereby further required, in the name of said State, to make re- 
turn of this warrant with your doings thereon at said meeting, at which you 
will preside until a moderator he chosen. 

Given under my hand and seal at Bangor, in said County, this eleventh 
day of July, in the year of our Lord one thousand eight hundred and 
thirty-one. W. D. WILLIAMSON, 

Justice of the Peace and Quorum. 

Pursuant to the within warrant, I have notified the inhabitants of said 
Town to meet at the time and place for the purposes within mentioned. 

Walter Powers, s^ «"'''or!»;d 
I to notify. 

The defendant, Jesse Wheelock, addressed the Jury and said, that after what 
had now come out it could be seen, that the defendants were under an impres- 
Bion from what the two ofticers had said, that they were justified in what they 
were doing, so long as they confined themselves to the west side of the fiver. 

The defendant, Barnabas Ilannawell, in his defence said, that having received 
the warrant, they were obliged under the law of the State of Maine to act, 
they would have been liable to punishment under their laws if they had declined. 
That in the situation of the country there was a difficulty on both sides, and of 
the two evils they thought they had chosen the least, they were led to suppose 
from what the two officers, Messrs. Maclauchlan and Coombes, had said, they 
would not be interfered with so long as they confined themselves to the west 
side of the river. 

The other defendants declined saying any ihinfr. 

The Attorney General in his reply, said, that a? the case was so clearly 
and distinctly made out by the evidence, he should make but few observations, 
as he conceived the Jury could have no doubt on their minds ; the fact of the 
conspiring and confederating together for the purposes and with the intention 
alleged in the indictment, was fully proved by the witnesses who could speak 
to that part of the case; indeed the defendants had themselves produced this 
very act and warrant which were read at the meeting, and which shewed 
distinctly that the intention of the meeting was to subvert the King's authority, 
and establish that of a foreign government ; they had not confined themselves 
to the American settlers, but they had used their efforts to induce the 
French inhabitants to depart from their allegiance to the government, under 
which they had been settled and always lived, and that but for the influence 
and exertion of Mr. Rice and Mr. Coombes these poor deluded people would 
probably have been seduced to join with them; that the French inhabitants, 
though possessed of many excellent qualities, were well known to be a quiet 
inoffensive set, hating contention, fond of peace, and easily wrought upon by 
the persuasion of artful men; that however it might operate on the Court in 
deciding on the punishment, the excuse alleged by the defendants could not 
have any weifjht with the Jury, if they were satisfied that the allegations had 
beeii substantiated by the witnesses. The act was one of the most deliberate 
kind, the warrant produced bearing date in July last. There could not be a 
higher offence committed against the peace of society ; the acts amounted to 
treason, and the defer.dants, if not British subjects, still owed a temporary al- 
legiance, so long as they remained in the Province under the protection of 
its laws. 

It is not disputed that the territory is claimed by the United States, and it 
is clear if entitled to it they will get it, the matter has been under a course 
of investigation by the Governments of the two countries, but until the pos- 
session of the country is actually surrendered, the old sovereignty must remain. 
The doctrine of law as to the cession of countries, is quite clear: even when 
one nation has actually stipulated by treaty to cede o country to another, tLera 



atxii. AP*»E?«Dix. 

it no clianj;!! in the old (orcreignty and juriidiction, until iotne formal act of 
cr«io(i, and octuai (ranifer Htid rccrivin); of po*»ri»ion. 

The Altorr.oy Genrrul llien cited the ruse of the Fam»', 5 Rob. lUtJ, and 
alfo read an c&trart from Chancellor Kent'a Commentariet on AmericHn Law, 
p. lOG, wherein (hat eminent lawjer expreialy confirmi the doctrine of law a* 
«et forth by Sir ^^'l!iiam Scott, and )aya it down aa a clear principle of jurii- 
pnidencf, that the lovereijfniy of the ceding country must continue in force, 
(•II an actual lurrender of posiesiion. 

He then, in a few word*, called (he attention of the Jury to the fMCt, that 
the Mtdawaska (elllemrnt had, erer kince the eCablikhmeni of the I'rovince, 
been considered ai forming; an inte^jral part of it, and our lawt and no o'.hrr 
were in force there ; there wai no act of the Government ai yet which made 
any chanj^r, though it wat potaible tuch change mi({ht take place, and if lo, those 
ictllert who chose to remain mi(;ht become f(ood citizent of (he I'nited Stated, 
Bi they now are |;ood tubjectt of the Km^;; the defendnntt ir.iy be the initru- 
ineiita of (heir (rovernment, if lo, it was exceeiiiufjly to be roi;rette(l ; but (heir 
act* could not be ovcriooked, and have compelled the OtTiccri of the Crown to 
institute this protecuiion. 

Mr. Jlstk F. Ciiii'MAN charged the Jury. lie utated the aubstance of the 
indictment and the nature uf the charge ; that the offence wai called in the lan- 
guage of the law a conspiracy, which may be described iti general ferma, as an 
agreement between two or more to do an unlawful act; i hat tUf gut of the present 
chargt wat the criminal intention imputed to the defendnntt to lubvcrt the 
government of Hit Majesty in the place in qnettion, and introduce that of a 
foreign power, and thit intention wat charged in the indictment as having been 
attempted to be carried into effect, by several overt acta specified therein. 
The learned Judge then iiated tome general points of law relating to offencea 
of thij nature, and informed the Jury, that when several pertont are proved to 
have entered into a combination for a common purpose, the act of any one of 
them, in furtherance of the common design, is evidence ngninst all. 

The learned Judge then proceeded to read over the whole of the testimony 
of the witncfses, and commented briefly wpon it as he went on. He also reod 
the documentfi adduced by the defendants, viz. the Acts of the Legislature of 
the State of Maine, incorporating the whole of the Mrtdawaska settlement, as 
well on the east as the west side of the River St. John, ond the warruni for 
holdmg the town meeting also for Madiwaska generally. He then proceeded 
to remark, that although the defendants might he American cii zent, ytt they 
owed atemporary allegiance while within our jurisdiction, and as i hey were also 
entitled to the benefit of our laws, tlic Jury should give the case the i>nme 
impartiiil consideration, as if they vverc their natural born fellow suhjects. The 
ease appeared to be fully made out in evidence ; indeed the defendun's them- 
selves (lul not deny the acts or the intentions with which they are tlmrged ; 
ihfy admit that it was their intention to set up another government in the 
Madawaska settlement; and that, in itself, must be a direct subversion of the 
government of His Majesty. The authority of the governing power in atiy 
country must of necessity be exclusive and supreme, and cannot admit of* 
competition. The reasons which the defi:ndant» allege for their conduct, 
might perhaps be taken into consideration in a future stage of the proceedings, 
if they should be convicted, but these cannot avuil ihcm on their trial before 
the Jury. 

As to the national character of the place, the learned Judge staled, that the 
oidy thing to be enquired into on this occasion is l/ie /'net of the settlement 
being within the jurisdiction of this Province, or not. He partitul/irly advt rtfd 
to the testimony of iMesfrs. Krascr, Clopper, Miller, and to the grant of 1700, 
by the Government of this Province, of the very land on which the seditions 
meeting was held, and stated that it was too clear to admit of the flightest 
vJuubf, that, i/i point of fact, th; Mada^-aska settlement had been continually 



APPENDIX, XXXUL 

under the jurisdiction of tins Province ever since iti first establishment, and 
lliat there had beeii no act by which this jurisdiction had been changed, and 
another introduced. He considered it as clearly established by the authorities 
cited by the Attorney General, that even when a place is expressly and with- 
out question ceded by Treaty, the sovereignty of the ceding country does 
not cease, until the formal act of surrender and transfer takes place ; and he 
laid it down as the clear rule of public law, applicable to the circumstances of 
the case now in question, that the existing British sovereignty and jurisdiction 
can be changed only by a public Act of the King^s Government for that 
purpose. That it was not for this Court to animadvert upon the acts of the 
authorities of the State of Maine given in evidence; it was sufficient to say, 
that the Court cannot regard them. 

The learned Judge then proceeded to notice the evidence given as to the 
acts and declarations of Mr. Madauclilan, and said, that although this gentle- 
man might have been employed for a particular purpose with regard to this 
District, yet no aces [or declarations of his, or of any other individual officer of 
the Government, could operate to change the sovereignty of the place; that 
it appeared, however, although Mr. Maclauchlan's instructions were such as 
not to induce him to use force to prevent the American Agents, with whom 
he had to deal, from collecting such statistical information from the inhabitants 
on the western side of the river, as these inhabitants would voluntarily furnish, 
yet that he was required to protest against any such proc£edings, and that he 
did accordingly protest; and he told Coombcs that he was directed not to 
allow any act of sovereignty on the part of the American Government. 

The learned Judge then left the case to the Jury, to consider of their verdict; 
and if the matters alleged in the Indictment were made out to their eatisfac- 
lion, to pronounce accordingly. 

The Jury retired from the Bar about i o'clock, and in a short time returned 
finding the three defendants Guilty, 

Tuesday, October 18, 1831. 
PRESENT : 
His Honor The Chief Justice, 
Mr. Justice Bliss, 
Mr. Justice Botsford, 
Mr. Justice Chifman. 

The defendants Barnabas Hannawell, Daniel Savage, and Jesse Wheelock, 
being present, pursuant to notice, to receive sentence, and being asked whether 
they had any thing to ofler to the Court, answered in the negative. 

His Honor Mr. Justice Ciiipman addressed them, and observed : — That 
it was sufficient merely to state the charge of which they had been found 
guilty, to shew its aggravated character, without adding a word of comment. 
It was no less than a direct attempt to subvert the authority of the Govern- 
ment, and to introduce the jurisdiction of a foreign State. That the defend- 
ants had to say in their extenuation that they were not the original authors of 
these proceedings; they appeared certainly to be instruments in the hands of 
others. They also set up in their defence a colour of justification which they 
contended was given to their proceedings by the acts and declarations of a 
person in the character of a British O-^icer. These acts and declarations, 
however, went no further than to abstain from preventing by force proceedings 
not amounting to acts of sovereignty, of certain American agents on the 
western side of the river St. John. Tho defendants appeared to be persons 
not wanting in understanding and discretion, and must have perceived the dif- 
ference between the proceedings of the American agents alluded to, and their 
own doings, which although they took place on the western side of the river, 
were nevertheless expressly founded on an Act of the Legislature of Maine, 



XXnV. APPENDIX. 

which extended (o (be whole territory on both (idci of the river, to the ex- 
trcoic line, wliich it wai notorious the Americans claimed as thiir boiindury, 
and which would, doubtless, have been taken advuntaije of a<i being nets of 
jurisdiction to the whole extent of such claim. The learned Jud^je lure re- 
peated what he had stated to the Jury on the trial, that nu such proceedings 
Ml those he had alluded to, cither on the part of ihe I)riti!>h or American 
■ uthoriiies, could be admitted to c'lani^e ihe soverciijniy atiJ nnlionnl rituracltr 
vf the place. That it had now, for the second time, been most latnfaclorily 
proved in th'u Court, (once before in tlic case of John Baker,) that this PrO' 
vince had exercised an uninterrupted jurisdiction, ever since its first erection, 
over the Madawasha scttUnicnt. That if Ihe tune should arrive when this 
territory or any part -jf it teas to be given up to the United States or any 
forcif^n country, this rircumstancc must, and wouli be announced by some 
public Act of the Bi-itith (ioocrnment, which would niakc known to the iidia- 
bilanls the transfer of the country, and the change of their allef^iancc. That 
vntil such public act came, this Court must and would maintain the jurisdic- 
tion it had been aectatonud to exercise. The learned Judge fuither stated, 
that there was another coniideralion which should have been well weighed 
by the defendants. The defendants, although profis&ing to be American 
citizens, and therefore not supposed to feel the tame attachment to the 
liritish Crown, even while living within the limits of its juriediclion, as 
to the country of their birth, yet should have abstained from bringing into 
jeopardy the numerous French inhabitants of the Mii<lnwa»ka setllcment, 
by seducing them from their natural allegiance; these irihubitunts were nulurai 
born Uriiish subjects, and so far as the duties of allegiance were concerned, 
•lood in the same relation to the Crown, os the Judges on this Bench, or any 
person in this Court. He further said, that the doctrine which the Court now 
asserted with respect to maintaining the actual jurisdiction of the Provincial 
authorities, was the same which it had acted tipoii in the case of John Baker. 
The correctness of it he conceived was unquestionable, and to his knowledge 
had never been denied by any authority, British or American. The defend- 
ants, in the face of that case, had proceeded to attempt a further subversion of 
that jurisdiction ; and olihough the Court was not disposed to inflict upon 
them unnecctsury pains and inconvenience, yet tbry must l)c prepared to bear 
the penal consequences nf their own nets. The Court in awaiding their pun- 
ishment, aimed at on cfTectual, but at the same time a tempcrute assiriion of 
the authority of the laws, such as it appeared to them the case, under nil its 
circumstances, required ; and concluded by pronouncing the icntcncc of lbs 
Court as follows : 

That each of the Defendants do pay a fine to the King of Fifty Pounds, 
and be imprisoned in the Common (laol of the County for Three Colendur 
Months, and stared committed until '.he laid Gncs arc paid. 



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